Opinion
KA 04-01685.
September 30, 2005.
Appeal from a judgment of the Ontario County Court (James R. Harvey, J.), rendered March 8, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and criminal possession of stolen property in the fourth degree.
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Hurlbutt, J.P., Scudder, Kehoe, Martoche and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminal sale of a controlled substance in the third degree (§ 220.39 [1]). The contention of defendant that he was denied effective assistance of counsel is not reviewable on direct appeal to the extent that it concerns matters outside the record on appeal ( see People v. Joyner, 19 AD3d 1129; see generally CPL 440.10 [f]). Defendant's contention otherwise does not survive the guilty plea because "[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance" ( People v. Burke, 256 AD2d 1244, 1244, lv denied 93 NY2d 851; see Joyner, 19 AD3d at 1130; People v. La Bar, 16 AD3d 1084, 1085). The sentence is not unduly harsh or severe.