People v. Williams

272 A.D.2d 986, 708 N.Y.S.2d 673, 2000 N.Y. App. Div. LEXIS 5318

Opinion

—Judgment unanimously affirmed. Memorandum: The contention of defendant that his first attorney was ineffective does not survive the waiver of his right to appeal (see, People v Petgen, 55 NY2d 529, 534-535, rearg denied 57 NY2d 674; People v Ferguson, 192 AD2d 800, lv denied 82 NY2d 717). The alleged instances of ineffectiveness on the part of defendant’s second attorney, raised in the pro se supplemental brief, are based upon matters outside the record and thus are not subject to review on direct appeal (see, People v Ford, 184 AD2d 1013, lv denied 80 NY2d 929).

The contention that defendant was coerced into pleading guilty survives his waiver of the right to appeal (see, People v De Jesus, 248 AD2d 1023, lv denied 92 NY2d 878). However, by failing to move to withdraw the guilty plea or to vacate the judgment of conviction, defendant has failed to preserve that contention for our review (see, People v Jeffrey, 239 AD2d 953, lv denied 90 NY2d 894; People v Martin, 239 AJD2d 800, 801, lv denied 90 NY2d 941), and this case does not fall within the narrow exception to the preservation requirement (see, People v Lopez, 71 NY2d 662, 666). (Appeal from Judgment of Erie County Court, DiTullio, J. — Criminal Possession Controlled Substance, 3rd Degree.) Present — Green, J. P., Hayes, Wisner and Hurlbutt, JJ.