Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. Vernon J. DIXON, Defendant-appellant.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), for Respondent.
Charles A. Marangola, Moravia, for Defendant–Appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon an Alford plea of, inter alia, attempted menacing a police officer or peace officer (Penal Law §§ 110.00, 120.18 ), and two counts of criminal possession of a weapon in the third degree (§ 265.02[1] ). Defendant contends that County Court erred in accepting his Alford plea because the record does not contain the requisite strong evidence of guilt or establish that the plea was the product of a voluntary and rational choice (see generally People v. Couser, 28 N.Y.3d 368, 379, 45 N.Y.S.3d 301, 68 N.E.3d 26 ). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review (see People v. Elliott, 107 A.D.3d 1466, 1466, 965 N.Y.S.2d 899, lv. denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 ; People v. Cruz, 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650, lv. denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ; People v. Zimblis, 23 A.D.3d 1086, 1087, 803 N.Y.S.2d 502, lv. denied 6 N.Y.3d 783, 811 N.Y.S.2d 350, 844 N.E.2d 805 ).
Defendant further contends that the counts of the indictment charging criminal possession of a weapon in the third degree are defective because they expressly allege that he was previously convicted of a crime, in violation of CPL 200.60(1). That defect, however, is not jurisdictional in nature (see generally People v. Dickinson, 78 A.D.3d 1237, 1239, 910 N.Y.S.2d 286, revd. on other grounds 18 N.Y.3d 835, 938 N.Y.S.2d 836, 962 N.E.2d 257 ; People v. Smith, 77 A.D.3d 990, 990–991, 907 N.Y.S.2d 889, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 ), and thus defendant's contention was forfeited by his plea (see People v. Cox, 275 A.D.2d 924, 925, 713 N.Y.S.2d 708, lv. denied 95 N.Y.2d 962, 722 N.Y.S.2d 479, 745 N.E.2d 399 ).
To the extent that defendant's contention that he was denied effective assistance of counsel survives his plea (see generally People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814, lv. denied 9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 ), we reject that contention. Defendant has not established that defense counsel was ineffective in failing to move to dismiss the counts charging criminal possession of a weapon in the third degree (see generally People v. Campbell, 17 A.D.3d 925, 926–927, 793 N.Y.S.2d 647, lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264 ), and we conclude that "counsel engaged in an active defense prior to [the negotiation of] the Alford plea, which was reasonable in its terms" (People v. Preister, 39 A.D.3d 1225, 1226, 832 N.Y.S.2d 846 ). Even assuming, arguendo, that defendant's entry of his plea while represented by his second attorney did not forfeit his right to contend that he was denied effective assistance by his first attorney's failure to advise him of his right to testify before the grand jury (cf. People v. Ortiz, 104 A.D.3d 1202, 1203, 960 N.Y.S.2d 587 ), we conclude that his contention is based on matters outside the record and must be raised by way of a motion pursuant to CPL article 440 (see People v. Gaston, 100 A.D.3d 1463, 1466, 953 N.Y.S.2d 780 ; People v. Frazier, 63 A.D.3d 1633, 1634, 880 N.Y.S.2d 809, lv. denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 ). The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.