People v. Maldonado

61 A.D.3d 1220, 876 N.Y.S.2d 661

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 2009
• Status: Published

Opinion

Kane, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered March 14, 2008, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.

Defendant was charged with various crimes arising out of a prison altercation. Defendant moved to suppress certain statements made by him and, following a Huntley hearing, County Court rendered a decision and order which suppressed the statements but contained an inconsistent decretal paragraph denying defendant’s motion. Thereafter, defendant entered a guilty plea to attempted assault in the second degree in full satisfaction of the indictment and was sentenced to a prison term of 2 to 4 years. Defendant now appeals.

We affirm. Defendant argues that counsel’s failure to take any steps to resolve the discrepancy in County Court’s suppression decision constituted ineffective assistance. To the degree that defendant’s argument relates to the voluntary nature of his plea, it is unpreserved for our review due to his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Sterling, 57 AD3d 1110, 1112-1113 [2008]). Moreover, any claim that defendant’s decision to plead guilty was based upon counsel’s advice as to the import of County Court’s suppression decision deals with matters outside of the record and should be raised in a CPL article 440 motion (see People v Cruz, 53 AD3d 986 [2008]; People v James, 269 AD2d 845, 846 [2000]; People v Harris, 109 AD2d 351, 360 [1985], lv denied 66 NY2d 919 [1985]).

Rose, J.E, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.