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People v. Folger

Supreme Court of New York, Second Department

October 2, 2013

The People of the State of New York, respondent,
v.
Shan Folger, appellant Ind. No. 41/11

Yasmin Daley Duncan, Brooklyn, N.Y., for appellant, and appellant pro se.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered October 11, 2011, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea was not voluntary is unpreserved for appellate review, because he did not move to vacate his plea or otherwise raise this issue before the County Court (see People v Perez, 51 A.D.3d 1043). In any event, the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 N.Y.2d 536, 543; People v Lopez, 71 N.Y.2d 662, 666; People v Harris, 61 N.Y.2d 9, 17).

The defendant's pro se contention that he was deprived of the constitutional right to the effective assistance of counsel is based on matters outside the record, and thus it cannot be reviewed on direct appeal (see People v Rohlehr, 87 A.D.3d 603, 604; People v Miller, 68 A.D.3d 1135, 1135). " The appropriate vehicle... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the... record is pursuant to CPL 440.10, where matters dehors the record may be considered'" (People v Rohlehr, 87 A.D.3d at 604, quoting People v Miller, 68 A.D.3d at 1135).

MASTRO, J.P., BALKIN, SGROI and HINDS-RADIX, JJ., concur.


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