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The People of the State of v. Carl Taylor

State of New York Supreme Court, Appellate Division Third Judicial Department


December 13, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CARL TAYLOR, APPELLANT.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April 30, 2010 in Albany County, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: November 13, 2012

Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.

In satisfaction of a reduced indictment charging him with murder in the second degree and criminal possession of a weapon in the fourth degree, defendant pleaded guilty to manslaughter in the first degree and waived his right to appeal. Alleging ineffective assistance of counsel, defendant indicated that he did not want to go forward with sentencing and, instead, sought appointment of new counsel to conduct an investigation of all matters favorable to his defense. Supreme Court denied the motion, noting that the issue was preserved for appeal. Thereafter, in accordance with the plea agreement, defendant was sentenced as a second felony offender to 20 years in prison followed by five years of postrelease supervision. Defendant now appeals.

We affirm. For preservation purposes, defendant's pro se claim at sentencing that his counsel was ineffective was tantamount to a motion to vacate his plea; therefore, it survives his appeal waiver and is properly preserved for our review (see People v Walley, 63 AD3d 1284, 1285 n 1 [2009]; cf. People v Jerome, 98 AD3d 1188, 1189 [2012]; People v Moore, 97 AD3d 850, 851 [2012]). Nonetheless, defendant's claim that his counsel did not adequately investigate the circumstances of his case is not supported in this record and is a claim more appropriately pursued by way of a CPL article 440 motion (see People v Feliz, 51 AD3d 1278, 1279 [2008]; see also People v Shiels, 93 AD3d 992, 993 [2012]; People v Carpenter, 93 AD3d 950, 952 [2012], lv denied 19 NY3d 863 [2012]).

Mercure, J.P., Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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