People v Manuel

People v Manuel 2010 NY Slip Op 09820 [79 AD3d 1817] December 30, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

The People of the State of New York, Respondent, v Kevin Manuel, Appellant.

—[*1] 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.

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.

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 [1]). 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 [2007], lv denied 9 NY3d 1036 [2008]; People v Lee, 24 AD3d 1246 [2005], lv denied 6 NY3d 850 [2006]; cf. People v Schafer, 19 AD3d 1133 [2005]). 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 [2006]), it "involve[s] 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 [2008]; see People v Graham, 77 AD3d 1439 [2010]). Present—Martoche, J.P., Fahey, Carni, Lindley and Sconiers, JJ.