People v Burwell

People v Burwell 2008 NY Slip Op 08547 [56 AD3d 304] November 13, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent,
v
Clarence Burwell, Appellant.

—[*1] Richard M. Weinstein, New York, for appellant.

Clarence Burwell, appellant pro se.

Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered July 13, 2005, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony. The identifying witness led the police into a basement in search of an intruder, and the police arrested defendant in the witness's presence. Even assuming that the witness's viewing of defendant in custody moments later could be considered a showup, this prompt, on-the-scene procedure was entirely permissible (see e.g. People v Gatling, 38 AD3d 239 [2007], lv denied 9 NY3d 865 [2007]; People v Boutte, 304 AD2d 307 [2003], lv denied 100 NY2d 579 [2003]).

After sufficient inquiry, the court properly denied defendant's motion to withdraw his guilty plea (see People v Frederick, 45 NY2d 520 [1978]). The record establishes the voluntariness of the plea. Defendant's disappointment in his attorney's inability to negotiate a more favorable disposition was not a basis for withdrawing the plea; moreover, we note that defendant received the most lenient sentence available for one in his situation (see Penal Law § 70.08 [3] [c]).

Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they primarily involve matters outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal [*2]standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668 [1984]). Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and Buckley, JJ.