People v. Kwiatkowski

268 A.D.2d 681, 700 N.Y.S.2d 776, 2000 N.Y. App. Div. LEXIS 236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 2000
• Status: Published

Opinion

Peters, J.

Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered August 12, 1998, convicting defendant upon his plea of guilty of two counts of the crime of possessing a sexual performance by a child.

In satisfaction of a 16-count indictment, defendant entered a plea of guilty to two counts of the crime of possessing a sexual performance by a child and waived his right to appeal. He was sentenced to the agreed-upon concurrent prison terms of IV3 to 4 years, to run concurrently with sentences imposed as the result of charges pending in two other counties. On this appeal by defendant, assigned counsel moves to be relieved of his assignment on the ground that there are no nonfrivolous issues to be raised on appeal.

Based upon our independent review of the record, we agree with defense counsel that there are no nonfrivolous issues. The record discloses that defendant entered a knowing, voluntary and intelligent plea of guilty, which he never sought to withdraw or vacate, waived the right to appeal and was sentenced in accordance with the plea bargain and relevant statutory requirements. The arguments raised in defendant’s pro se submission are unpreserved and/or based upon alleged facts outside the record. The judgment is affirmed and defense counsel’s application for leave to withdraw is granted (see, People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).

Cardona, P. J., Crew III, Spain and Graffeo, JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.