| People v Mallard |
| 2017 NY Slip Op 05376 [151 AD3d 1957] |
| June 30, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Larry L.Mallard, Jr., Also Known as Lil Larry, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of counsel), fordefendant-appellant.
Larry L. Mallard, Jr., defendant-appellant pro se.
R. Michael Tantillo, District Attorney, Canandaigua (Jason A. MacBride of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedOctober 2, 2013. The judgment convicted defendant, upon his plea of guilty, of manslaughter inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofmanslaughter in the first degree (Penal Law § 125.20 [1]). We agree with defendantthat his " 'waiver of his right to appeal was invalid because [County Court] conflated theappeal waiver with the rights automatically waived by the guilty plea' " (People v Hawkins, 94 AD3d 1439,1439 [2012], lv denied 19 NY3d 974 [2012]; see People v Howington, 144 AD3d 1651, 1652 [2016]). Thus,defendant's remaining challenges are not encompassed by that waiver. Contrary to the remainingcontention of defendant in his main brief, the sentence is not unduly harsh and severe.
Defendant's challenge in his pro se supplemental brief to the factual sufficiency of the pleaallocution is not preserved for our review (see generally People v Lopez, 71 NY2d 662,665 [1988]), and it is lacking in merit in any event. No factual basis for the plea is requiredwhere, as here, "a defendant enters a negotiated plea to a lesser crime than the one charged" (People v Johnson, 23 NY3d 973,975 [2014]; see People v Gibson,140 AD3d 1786, 1787 [2016], lv denied 28 NY3d 1072 [2016]). We furtherconclude, contrary to defendant's contention in his pro se supplemental brief, that he wasafforded meaningful representation inasmuch as he "receive[d] an advantageous plea and nothingin the record casts doubt on the apparent effectiveness of counsel" (People v Norman, 128 AD3d1418, 1419 [2015], lv denied 27 NY3d 1003 [2016] [internal quotation marksomitted]). To the extent that defendant's contentions regarding the plea and effective assistanceof counsel are based upon matters outside the record, those matters should be addressed by amotion pursuant to CPL 440.10 (see Norman, 128 AD3d at 1419).Present—Centra, J.P., Peradotto, DeJoseph, NeMoyer and Troutman, JJ.