Opinion
March 31, 1999
Appeal from Judgment of Genesee County Court, Noonan, J. — Attempted Assault, 2nd Degree.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his Alford plea ( see, North Carolina v. Alford, 400 U.S. 25) of attempted assault in the second degree (Penal Law § 110.00, 120.05 Penal[7]) and sentencing him as a second felony offender to an indeterminate term of incarceration of 2 to 4 years, to be served consecutively to a sentence previously imposed upon defendant. Defendant contends that County Court erroneously considered itself bound to impose a consecutive term and that defendant was denied effective assistance of counsel at sentencing.
Remarks during the plea colloquy establish that the court was fully aware of its discretion in sentencing defendant, and particularly was aware that concurrent sentences were permissible. Defendant was properly sentenced in accordance with the plea bargain.
It does not appear from the record that defendant was denied effective assistance of counsel at sentencing. We note, however, that the record is silent with regard to whether the presentence report was provided to counsel at least one day before sentencing ( see, CPL 390.50[a]). If defendant is to establish a claim of ineffective assistance on that basis, he must develop the record by means of a CPL article 440 motion.
Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.