Opinion
102 KA 22-00170
02-10-2023
The PEOPLE of the State of New York, Respondent, v. Matthew C. SMITH, Defendant-Appellant.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
PRESENT: PERADOTTO, J.P., LINDLEY, BANNISTER, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
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 criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06 [1] ), defendant contends that his plea was not knowing, voluntary, and intelligent based on an alleged Brady violation (see generally Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ). Defendant's contention involves matters outside the record on appeal and must therefore be raised by way of a motion pursuant to CPL article 440 (see People v. Jefferson , 125 A.D.3d 1463, 1464-1465, 3 N.Y.S.3d 547 [4th Dept. 2015], lv denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [2015] ; People v. DeJesus , 110 A.D.3d 1480, 1482, 973 N.Y.S.2d 512 [4th Dept. 2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 639, 7 N.E.3d 1127 [2014] ; People v. Ellis , 73 A.D.3d 1433, 1434, 903 N.Y.S.2d 615 [4th Dept. 2010], lv denied 15 N.Y.3d 851, 909 N.Y.S.2d 28, 935 N.E.2d 820 [2010]).