People v. Bethune

from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), rendered January 6, 2003. The judgment convicted defendant, upon his plea of guilty, of aggravated sexual abuse in the first degree, and assault in the second degree (three counts). It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, three counts of assault in the second degree (Penal Law § 120.05 [2]). The contention of defendant that he was denied effective assistance of counsel survives his guilty plea only insofar as he contends that his plea was infected by the allegedly ineffective assistance and that he entered the plea because of his attorney’s allegedly poor performance (see People v Burke, 256 AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]; see generally People v Petgen, 55 NY2d 529, 534-535 [1982], rearg denied 57 NY2d 674 [1982]). Those contentions, however, involve matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL article 440 (see People v Jennings, 8 AD3d 1067, 1068 [2004], lv denied 3 NY3d 676 [2004]). Present—Scudder, J.P., Martoche, Smith, Pine and Hayes, JJ.