Opinion
KA 03-00660.
December 30, 2004.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered February 25, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree.
Before: Pigott, Jr., P.J., Green, Hurlbutt, 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 criminal possession of a controlled substance in the second degree (Penal Law § 220.18). We agree with County Court that, in light of the clear and unambiguous record on appeal, the affidavit of trial counsel does not raise a question of fact whether defendant was tried on the superseding indictment rather than the original indictment. We determined that issue on a prior appeal ( People v. Rodriquez, 299 AD2d 875) and see no reason to depart from that determination ( see generally People v. Wallace, 298 AD2d 130, 131, lv denied 99 NY2d 565).