Opinion
1425 KA 12-00509.
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Julie A. FULLER, Defendant–Appellant.
The Glennon Law Firm, P.C., Rochester (Peter J. Glennon of Counsel), for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.
The Glennon Law Firm, P.C., Rochester (Peter J. Glennon of Counsel), for Defendant–Appellant.
Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI AND SCONIERS, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting her upon her plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ), defendant contends that her plea was not knowingly or voluntarily entered because she was under the influence of alcohol at the time of the plea. Although that contention survives defendant's valid waiver of the right to appeal (see generally
People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 ), and is preserved for our review by defendant's motion to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ), we conclude that it is without merit. Defendant told County Court during the plea colloquy that she had not consumed any drugs or alcohol in the previous 24 hours, and there is nothing in the record to suggest otherwise (see People v. Forshey, 298 A.D.2d 962, 963, 748 N.Y.S.2d 295, lv. denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83, reconsideration denied 100 N.Y.2d 561, 763 N.Y.S.2d 818, 795 N.E.2d 44 ; see also People v. Galagan, 35 A.D.3d 973, 974, 824 N.Y.S.2d 819 ; People v. Ackerman, 199 A.D.2d 576, 577, 605 N.Y.S.2d 971, lv. denied 83 N.Y.2d 848, 612 N.Y.S.2d 380, 634 N.E.2d 981 ). Defendant further contends that she received ineffective assistance of counsel because she informed defense counsel that she was intoxicated and defense counsel failed to advise the court of that fact. That contention, insofar as it survives her guilty plea, is based on matters outside the record and thus is not reviewable on direct appeal (see People v. Davis, 119 A.D.3d 1383, 1384, 989 N.Y.S.2d 224, lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 ; People v. Bethune, 21 A.D.3d 1316, 1316, 801 N.Y.S.2d 196, lv. denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 ).
Finally, inasmuch as defendant failed to obtain leave to appeal from the order denying her CPL 440.10 motion, her contentions with respect to the denial of that motion are not properly before us (see CPL 450.15 [1 ]; 460.15; People v. Acosta, 19 A.D.3d 1041, 1041, 796 N.Y.S.2d 289, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155 ; People v. Brown, 277 A.D.2d 987, 987, 716 N.Y.S.2d 632, lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.