Opinion
No. 137 KA 20-01526
03-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. GERALD L. SMITH, DEFENDANT-APPELLANT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered January 4, 2018. The judgment convicted defendant upon his plea of guilty of attempted burglary in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), defendant contends that his plea was involuntary. As a preliminary matter, we note that, even assuming, arguendo, that defendant's waiver of the right to appeal is valid, defendant's contention survives that waiver (see People v Tchiyuka, 169 A.D.3d 1398, 1398 [4th Dept 2019]). Nonetheless, defendant's contention relies on matters outside the record and thus is not properly before us on his direct appeal and must be pursued by way of a motion pursuant to CPL article 440 (see generally People v Jackson, 153 A.D.3d 1605, 1606 [4th Dept 2017], lv denied 30 N.Y.3d 1106 [2018]).