Opinion
06-30-2017
The PEOPLE of the State of New York, Respondent, v. Larry L. MALLARD, Jr., also known as Lil Larry, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of Counsel), for Defendant–Appellant. Larry L. Mallard, Jr., Defendant–Appellant Pro Se. R. Michael Tantillo, District Attorney, Canandaigua (Jason A. MacBride of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of Counsel), for Defendant–Appellant.
Larry L. Mallard, Jr., Defendant–Appellant Pro Se.
R. Michael Tantillo, District Attorney, Canandaigua (Jason A. MacBride of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1 ] ). We agree with defendant that his " ‘waiver of his right to appeal was invalid because [County Court] conflated the appeal waiver with the rights automatically waived by the guilty plea’ " ( People v. Hawkins, 94 A.D.3d 1439, 1439, 942 N.Y.S.2d 300, lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 356, 973 N.E.2d 766 ; see People v. Howington, 144 A.D.3d 1651, 1652, 41 N.Y.S.3d 843 ). Thus, defendant's remaining challenges are not encompassed by that waiver. Contrary to the remaining contention of defendant in his main brief, the sentence is not unduly harsh and severe.
Defendant's challenge in his pro se supplemental brief to the factual sufficiency of the plea allocution is not preserved for our review (see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), and it is lacking in merit in any event. No factual basis for the plea is required where, as here, "a defendant enters a negotiated plea to a lesser crime than the one charged" ( People v. Johnson, 23 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 ; 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 ). We further conclude, contrary to defendant's contention in his pro se supplemental brief, that he was afforded meaningful representation inasmuch as he "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Norman, 128 A.D.3d 1418, 1419, 7 N.Y.S.3d 813, lv. denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [internal quotation marks omitted] ). To the extent that defendant's contentions regarding the plea and effective assistance of counsel are based upon matters outside the record, those matters should be addressed by a motion pursuant to CPL 440.10 (see Norman, 128 A.D.3d at 1419, 7 N.Y.S.3d 813 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.