People v. Albino

280 A.D.2d 430, 721 N.Y.S.2d 502, 2001 N.Y. App. Div. LEXIS 1917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2001
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Felice Shea, J.), rendered April 23, 1999, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree and attempted assault in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 7 years, unanimously affirmed.

Since defendant did not move to withdraw his plea, and since his motion to vacate judgment was made on different grounds, his challenges to his plea allocution are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the record establishes that defendant entered his plea knowingly, intelligently and voluntarily (see, People v Harris, 61 NY2d 9).

Defendant’s claims that he received ineffective assistance of counsel and that his plea was thus rendered involuntary rest on factual assertions dehors the record, particularly as to conversations between defendant and counsel. Accordingly, defendant’s claims are unreviewable (see, People v Ramos, 63 NY2d 640, 643). Moreover, defendant made a motion to vacate judgment pursuant to CPL 440.10 alleging ineffective assistance, but failed to include his present factual assertions. In any event, that motion was denied and leave to appeal to this Court was likewise denied. To the extent that the existing record permits review, it establishes that defendant received meaningful representation (see, People v Ford, 86 NY2d 397, 404).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Mazzarelli, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.