People v. Aubrey

• Decision Date: 27 May 2010
• Citation: People v. Aubrey, 900 N.Y.S.2d 922, 73 A.D.3d 1393 (N.Y. App. Div. 2010)
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey AUBREY, Appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 922

73 A.D.3d 1393

The PEOPLE of the State of New York, Respondent,

v.Jeffrey AUBREY, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 27, 2010.

Stephen G. Court, Saratoga Springs, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), for respondent.

Before: CARDONA, P.J., SPAIN, STEIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Clinton Court (McGill, J.), renderedJanuary 15, 2009, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant waived indictment and pleaded guilty to a superiorcourt information charging him with criminal possession of a controlled substance in the third degree. Pursuant to the plea agreement, defendant was thereafter sentenced to a term of three years in prison, to be followed by two years of postrelease supervision. Defendant now appeals and we affirm.

Defendant's claims that his plea was not entered knowingly, voluntarily or intelligently and that he was denied the effective assistance of counsel are not preserved for our review due to his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Gorrell, 63 A.D.3d 1381, 1381, 882 N.Y.S.2d 324 [2009], lv. denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009]; People v. Dantzler, 63 A.D.3d 1376, 1377, 881 N.Y.S.2d 222 [2009], lv. denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ). Moreover, with regard to the plea, the preservation rule is inapplicable as defendant made no statements during the plea allocution that cast doubt on his guilt or tended to negate a material element of the crime ( see People v. Scitz, 67 A.D.3d 1251, 1251, 889 N.Y.S.2d 306 [2009] ). In any event, defendant's claims are without merit, as the record reveals that County Court fully apprised defendant of the ramifications of pleading guilty and defendant communicated his understanding on the record, relinquished his rights and freely admitted his guilt ( see People v. Swarts, 64 A.D.3d 801, 802, 882 N.Y.S.2d 736 [2009] ). Further, contrary to defendant's contention, it was not necessary that defendant recite the facts underlying his crime ( see People v. Smith, 57 A.D.3d 1237, 1237, 869 N.Y.S.2d 693 [2008] ).

As to defendant's contention that he was denied the effective assistance of counsel, his claims that counsel failed to meet with him, make certain pretrial motions, investigate certain defenses and pressured him into pleading guilty concern matters outside the record and are not properly the subject of a direct appeal ( see People v. Carroll, 299 A.D.2d 572, 572-573, 748 N.Y.S.2d 877 [2002], lvs. denied 99 N.Y.2d 625, 626, 760 N.Y.S.2d 106, 790 N.E.2d 280 [2003] ). Finally, as the record reflects that defendant did not validly waive his right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]...