Opinion
No. KA 07-02092.
December 31, 2008.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered September 10, 2007. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree.
JANICE A. LAHMAN, ROCHESTER, FOR DEFENDANT-Appellant.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (PATRICIA L. DZIUBA OF COUNSEL), FOR Respondent.
Before: Hurlbutt, J.P., Centra, Fahey and Peradotto, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10). Defendant failed to preserve for our review his contention that County Court erred in ordering restitution without conducting a hearing, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see People v Perry, 50 AD3d 1556, lv denied 10 NY3d 963). To the extent that the further contention of defendant that he was denied effective assistance of counsel survives the plea ( see People v Santos, 37 AD3d 1141, lv denied 8 NY3d 950), it concerns matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 ( see People v Leno, 21 AD3d 1399, lv denied 5 NY3d 883; People v Michalski, 15 AD3d 918, 919, lv denied 5 NY3d 854, 6 NY3d 756, cert denied 547 US 1077, reh denied 547 US 1176).