People v. Peterson

56 A.D.2d 1230, 866 N.Y.S.2d 915

Opinion

— Appeal from a

judgment of the Oswego County Court (James W McCarthy, J.), rendered May 30, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [3]). Although the contention of defendant that he was denied effective assistance of counsel “survives his guilty plea and his waiver of the right to appeal inasmuch as he contends that his plea was infected by the alleged ineffective assistance” (People v Jennings, 8 AD3d 1067, 1068 [2004], lv denied 3 NY3d 676 [2004]), that contention involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see id.; see also People v Nichols, 21 AD3d 1273, 1274 [2005], lv denied 6 NY3d 757 [2005]; People v Prince, 5 AD3d 1098, 1098-1999 [2004], lv denied 2 NY3d 804 [2004]). Present — Hurlbutt, J.P.Martoche, Smith, Fahey and Peradotto, JJ.