Opinion
No. KA 09-02222.
December 30, 2010.
Appeal from a judgment of the Wayne County Court (Stephen R. Sirkin, J.), rendered October 16, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree.
RONALD C. VALENTINE, PUBLIC DEFENDER, LYONS (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (DAVID V. SHAW OF COUNSEL), FOR RESPONDENT.
Before: Martoche, J.P., Fahey, Carni, Lindley and Sconiers, 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 criminal possession of a controlled substance in the third degree (Penal Law § 220.16). The contention of defendant that County Court failed to apprehend the extent of its discretion in sentencing him is not supported by the record ( see People v Moon, 43 AD3d 1379, lv denied 9 NY3d 1036; People v Lee, 24 AD3d 1246, lv denied 6 NY3d 850; cf. People v Schafer, 19 AD3d 1133). To the extent that the further contention of defendant that he was denied effective assistance of counsel survives his plea ( see People v Barnes, 32 AD3d 1250), it "involved] matters outside the record on appeal and thus [is] properly raised by way of a motion pursuant to CPL article 440" ( People v Barnes, 56 AD3d 1171, 1171; see People v Graham, 11 AD3d 1439).