Appeal from a judgment of the Wayne County Court Stephen R. Sirkin, J. rendered October 16, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree.
Appellate Division, Fourth Department
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: MARTOCHE, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
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 of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 ). The contention of defendant that County Court failed to apprehend the extent of its discretion in sentencing him is not supported by the record (see People v Moon, 43 AD3d 1379, lv denied 9 NY3d 1036; People v Lee, 24 AD3d 1246, lv denied 6 NY3d 850; cf. People v Schafer, 19 AD3d 1133). To the extent that the further contention of defendant that he was denied effective assistance of counsel survives his plea (see People v Barnes, 32 AD3d 1250), it "involve[s] matters outside the record on appeal and thus [is] properly raised by way of a motion pursuant to CPL article 440" (People v Barnes, 56 AD3d 1171, 1171-1172; see People v Graham, 77 AD3d 1439).
Entered: December 30, 2010
Patricia L. Morgan Clerk of the Court
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