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People v. Hamilton

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
THERESA D. HAMILTON, DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered September 30, 2005. The judgment convicted defendant, upon her plea of guilty, of criminal possession of a forged instrument in the second degree (three counts).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from a judgment convicting her, upon her plea of guilty, of three counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25). The contention of defendant that she was denied effective assistance of counsel does not survive her guilty plea because "[t]here is no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [her] attorney['s] allegedly poor performance" (People v Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d 869 [internal quotation marks omitted]; see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851). In any event, that contention concerns matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Williams, 48 AD3d 1108, 1109, lv denied 10 NY3d 872; People v Jackson, 4 AD3d 773, lv denied 2 NY3d 801). Finally, the sentence is not unduly harsh or severe.

20090206

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