| People v Morton |
| 2019 NY Slip Op 05017 [173 AD3d 1445] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ahmad Morton, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 29, 2016, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with attempted criminal possession of a controlled substance in the third degree. Hepleaded guilty to that crime and waived his right to appeal. In accordance with the terms of theplea agreement, he was sentenced to time served and five years of probation. However, defendantwas subsequently charged with violating various conditions of his probation. At the conclusionof a hearing on the probation violations, County Court determined that defendant had violated hisprobation by possessing a firearm.[FN1] Consequently, the court revoked his probationand resentenced him to 5
Defendant's challenges related to his underlying judgment of conviction—argumentsconcerning the voluntariness of his plea and alleged ineffectiveness of counsel prior to andduring the plea proceeding—cannot be raised on the appeal from the judgmentresentencing him following the revocation of his probation (see People v Pozzi, 117 AD3d 1325, 1325 [2014]; People v Daniels, 106 AD3d 1189,1189 [2013], lv denied 21 NY3d 1014 [2013]; People v Pittman, 17 AD3d 930, 931 n [2005], lv denied 5NY3d 767 [2005]).[FN2]The record does not support defendant's arguments that he was deprived of meaningfulrepresentation at the probation violation hearing. Any other arguments concerning theineffectiveness of counsel rely on information outside the record and would be moreappropriately addressed in a CPL article 440 motion (see People v Perkins, 140 AD3d 1401, 1403 [2016], lvdenied 28 NY3d 1126 [2016]).
Defendant's "current challenge to the severity of the sentence imposed upon the revocation ofhis probation is not precluded by his waiver of appeal entered in connection with his originalguilty plea and sentence" (People vMiddlemiss, 149 AD3d 1419, 1420 [2017]). Nevertheless, defendant possessed a loadedweapon within months of being placed on probation, resulting in his conviction of anotherfelony. Although the sentence he received was the maximum that could be imposed for the crimeof attempted criminal possession of a controlled substance in the third degree (see PenalLaw §§ 70.70 [2] [a] [ii]; 110.05 [4]; 220.16), we find no extraordinarycircumstances or abuse of discretion warranting a reduction of the resentence in the interest ofjustice (see People v Regan, 162AD3d 1414, 1415 [2018]).
Garry, P.J., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:In connection therewith,defendant pleaded guilty to attempted criminal possession of a weapon in the second degree andthat conviction is the subject of a separate appeal (People v Morton, 173 AD3d 1464 [2019] [appeal No. 109132, decided herewith]).
Footnote 2:There is no indication thatdefendant appealed from his underlying judgment of conviction.