Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Stephen L. MYERS, Defendant–Appellant.
Charles J. Greenberg, Amherst, for Defendant–Appellant. Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
Charles J. Greenberg, Amherst, for Defendant–Appellant.
Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 ), burglary in the third degree (§ 140.20) and grand larceny in the fourth degree (§ 155.30[1] ). Even assuming, arguendo, that defendant did not knowingly, voluntarily and intelligently waive his right to appeal, we nevertheless conclude that none of defendant's contentions requires reversal or modification of the judgment.
We reject defendant's contention that his plea was involuntary because it was allegedly induced by the false promise that he would be eligible for shock incarceration. Nothing in the record suggests that defendant's eligibility for shock incarceration or his admission to that program was a condition of the plea (see People v.
Demick, 138 A.D.3d 1486, 1486, 29 N.Y.S.3d 215, lv. denied 27 N.Y.3d 1150, 39 N.Y.S.3d 384, 62 N.E.3d 124 ) and, during the plea proceeding, defendant expressly disclaimed any off-the-record promises (see People v. Harmon, 50 A.D.3d 318, 319, 854 N.Y.S.2d 714, lv. denied 10 N.Y.3d 935, 862 N.Y.S.2d 341, 892 N.E.2d 407 ).
Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea proceeding with respect to the grand larceny count, inasmuch as his motion to withdraw the plea was made on a different ground (see People v. Gibson, 140 A.D.3d 1786, 1787, 32 N.Y.S.3d 413, lv. denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 ). This case does not come within the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).
Finally, defendant's contention that he was denied effective assistance of counsel is based upon matters outside the record and thus must be raised by a motion pursuant to CPL article 440 (see People v. Monaghan, 101 A.D.3d 1686, 1686, 956 N.Y.S.2d 764, lv. denied 23 N.Y.3d 965, 988 N.Y.S.2d 572, 11 N.E.3d 722 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.