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The People of the State of New York

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


December 21, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V WALTER A. GARDNER, III,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered December 10, 2010.

People v Gardner

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.

Released on December 21, 2012

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.

The judgment convicted defendant, upon his plea of guilty, of assault in the second degree and resisting arrest.

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 assault in the second degree (Penal Law § 120.05 [3]) and resisting arrest (§ 205.30). Defendant first contends that his plea was not knowingly, intelligently and voluntarily entered because he never admitted during the plea colloquy that he intended to prevent a police officer from performing a lawful duty or that he in fact caused injury to an officer. "That contention is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by defendant's valid waiver of the right to appeal" (People v Thomas, 72 AD3d 1483, 1483). In any event, defendant also failed to preserve that contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v Lewandowski, 82 AD3d 1602, 1602). "Although defendant's initial factual allocution may have negated an essential element of the crime, this case does not fall within the exception to the preservation rule because the court conducted the requisite further inquiry and defendant did not thereafter raise any further objections" (People v Jennings, 8 AD3d 1067, 1068, lv denied 3 NY3d 676).

We reject defendant's further contention that he was denied effective assistance of counsel. Assuming, arguendo, that defendant's contention otherwise survives the guilty plea and his waiver of the right to appeal, we conclude that he received meaningful representation (see generally People v Ford, 86 NY2d 397, 404). To the extent that defendant contends that defense counsel's alleged failure to communicate with him constituted ineffective assistance, it is based upon matters outside the record and thus may only be raised by way of a motion pursuant to CPL article 440 (see People v Frazier, 63 AD3d 1633, 1634, lv denied 12 NY3d 925). Entered: December 21, 2012 Frances E. Cafarell Clerk of the Court

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