People v. Folger
| Decision Date | 02 October 2013 |
| Citation | 971 N.Y.S.2d 890,2013 N.Y. Slip Op. 06380,110 A.D.3d 736 |
| Parties | The PEOPLE, etc., respondent, v. Shan FOLGER, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant, and appellant pro se.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered October 11, *8912011, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's pro se contention that he was deprived of the constitutional right to the effective assistance of counsel is based on matters outside the record, and thus it cannot be reviewed on direct appeal (see People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919;People v. Miller, 68 A.D.3d 1135, 1135, 892 N.Y.S.2d 152). “ ‘The appropriate vehicle ... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the ... record is pursuant to CPL 440.10, where matters dehors the record may be considered’ ” ( People v. Rohlehr, 87 A.D.3d at 604, 927 N.Y.S.2d 919, quoting People v. Miller, 68 A.D.3d at 1135, 892 N.Y.S.2d 152).
The defendant's contention that his plea was not voluntary is unpreserved for appellate review, because he did not move to vacate his plea or otherwise raise this issue before the County Court ( see People v. Perez, 51 A.D.3d 1043, 861 N.Y.S.2d 63). In any event, the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170).
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...record and, thus, cannot be reviewed on direct appeal (see People v. Granger , 122 A.D.3d 940, 942, 997 N.Y.S.2d 466 ; People v. Folger , 110 A.D.3d 736, 971 N.Y.S.2d 890 ; People v. Rohlehr , 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ). The appropriate vehicle to allege ineffective assistance o......
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