People v Barnes

People v Barnes 2008 NY Slip Op 08822 [56 AD3d 1171] November 14, 2008 Appellate Division, Fourth 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 Donnell A. Barnes, Appellant.

—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), for defendant-appellant.

Donnell A. Barnes, defendant-appellant pro se.

Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered March 12, 2007. The judgment convicted defendant, upon his plea of guilty, of robbery in the second degree.

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 robbery in the second degree (Penal Law § 160.10 [2] [b]). Contrary to defendant's contention, the sentence is not unduly harsh or severe. We note, however, that the certificate of conviction incorrectly reflects that defendant was sentenced to a determinate term of incarceration of five years, and it must therefore be amended to reflect that he was sentenced to a determinate term of incarceration of six years (see generally People v Saxton, 32 AD3d 1286 [2006]). We have examined the contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel based on defense counsel's failure "to secure" his right to testify before the grand jury and his contention with respect to the alleged invalidity of his waiver of the right to appeal and his plea and conclude that neither contention requires reversal. To the extent that defendant otherwise contends that he was denied effective assistance of counsel, those claims of ineffective assistance involve matters outside the record on appeal and thus are properly raised by way of a motion pursuant to CPL article 440 (see generally People v Hall, 50 AD3d 1467, 1469 [2008]). Present—Martoche, J.P., Smith, Centra, Peradotto and Pine, JJ.