Opinion
No. 792 KA 21-00453
11-15-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ROBERT C. LEWIS, DEFENDANT-APPELLANT.
STEVEN A. FELDMAN, MANHASSET, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
STEVEN A. FELDMAN, MANHASSET, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND KEANE, JJ.
Appeal from a resentence of the Steuben County Court (Chauncey J. Watches, J.), rendered January 6, 2021. Defendant was resentenced upon his conviction of rape in the first degree.
It is hereby ORDERED that said appeal is unanimously dismissed.
Memorandum: Defendant appeals from a resentence pursuant to which County Court increased to the lawful minimum the postrelease supervision component of the sentence previously imposed on his conviction, following a jury trial, of rape in the first degree (Penal Law former § 130.35 [2]). Defendant's sole contention on appeal is that we should remit the matter for a hearing on his claim, raised during the resentencing proceeding, that he was denied effective assistance of counsel during plea negotiations because trial counsel purportedly misadvised him regarding the minimum period of postrelease supervision he faced if convicted after trial, which erroneous advice allegedly led him to reject pretrial plea offers that would have resulted in a less severe sentence (see generally Lafler v Cooper, 566 U.S. 156, 162-163 [2012]). Defendant's contention regarding the effectiveness of trial counsel during plea negotiations is not, however, reviewable on appeal from the resentence (see CPL 450.30 [3]; People v Luddington, 5 A.D.3d 1042, 1042 [4th Dept 2004], lv denied 3 N.Y.3d 643 [2004]). The proper procedural vehicle to review defendant's contention is a motion to vacate the judgment of conviction pursuant to CPL 440.10 (see generally People v McNair, 294 A.D.2d 952, 952 [4th Dept 2002], lv denied 98 N.Y.2d 699 [2002]). Inasmuch as defendant does not raise any contentions regarding the resentence, we dismiss the appeal (see generally People v Parrilla, 227 A.D.3d 1419, 1419-1420 [4th Dept 2024]; People v Woodward, 189 A.D.3d 2107, 2107-2108 [4th Dept 2020]).