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People v. Masso-Diaz

Supreme Court of New York, Third Department

June 13, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
MIGUEL MASSO-DIAZ, Appellant.

Calendar Date: April 18, 2013

Francisco P. Berry, Ithaca, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

McCarthy, J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered January 19, 2011, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

In November 2010, defendant pleaded guilty to assault in the second degree in satisfaction of a three-count indictment, a pending violation of probation petition, an unrelated felony and other charges. In accordance with the plea agreement, he was thereafter sentenced as a second felony offender to seven years in prison, to be followed by five years of postrelease supervision. This appeal ensued.

We affirm. Defendant's sole argument on appeal is that he received ineffective assistance of counsel because — during sentencing — defense counsel misstated the law as to defendant's legal options had he not entered a guilty plea to the subject crime. Defendant does not explain how a statement made at sentencing would have affected his earlier guilty plea. Claims relying on proof outside the record are appropriately raised in a postjudgment motion, not on direct appeal (see People v Rivera, 78 A.D.3d 1423, 1424 [2010]). Because the record does not indicate that defendant moved to withdraw his plea or vacate the judgment of conviction, the issue of ineffective assistance of counsel has not been preserved for our review (see id.; People v Belle, 74 A.D.3d 1477, 1480 [2010], lv denied 15 N.Y.3d 918 [2010]).

Lahtinen, J.P., Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.


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