Opinion
10-05-2017
The PEOPLE of the State of New York, Respondent, v. Brian HARLEY, Defendant–Appellant.
Koos Law Office, New York (Gary Koos of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
Koos Law Office, New York (Gary Koos of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
By pleading guilty in the underlying proceeding, defendant automatically forfeited appellate review of his claim, based on People v. Zinke, 76 N.Y.2d 8, 556 N.Y.S.2d 11, 555 N.E.2d 263 (1990), that he had an ownership interest in the stolen property, and thus could not be guilty of larceny (see People v. Plunkett, 19 N.Y.3d 400, 948 N.Y.S.2d 233, 971 N.E.2d 363 [2010] ; see also People v. Levin, 57 N.Y.2d 1008, 457 N.Y.S.2d 472, 443 N.E.2d 946 [1982] ; People v. Mendez, 25 A.D.3d 346, 805 N.Y.S.2d 838 [1st Dept.2006] ). While defendant styles his claim as one of "actual innocence," the gist of his claim is that, as a matter of statutory interpretation, his conduct does not constitute larceny. Since such a claim is based on the record that was, or could have been, made before Supreme Court, it is not the proper subject of a CPL 440.10 motion. To the extent defendant's argument could be construed as alleging ineffective assistance of counsel in connection with the guilty plea, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
ACOSTA, P.J., RENWICK, WEBBER, OING, and MOULTON, JJ., concur.