People v. Lopez

• Decision Date: 10 June 2010
• Citation: People v. Lopez, 902 N.Y.S.2d 230, 74 A.D.3d 1498 (N.Y. App. Div. 2010)
• Parties: The PEOPLE of the State of New York, Respondent, v. Marcus LOPEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 230

74 A.D.3d 1498

The PEOPLE of the State of New York, Respondent,

v.Marcus LOPEZ, Appellant.

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

June 10, 2010.

Cynthia Feathers, Saratoga Springs, for appellant.

Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, LAHTINEN, MALONE JR. and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered December 11, 2008, convicting defendant upon his plea of guilty of the crime of possessing a sexual performance by a child.

After defendant was found to be in possession of numerous photographic images of boys with their genitals exposed, he was indicted on 12 counts of possessing a sexual performance by a child. In full satisfaction thereof, defendant pleaded guilty to one count of possessing a sexual performance by a child and was sentenced to an agreed-upon 10-year period of probation. Defendant now appeals contending, among other things, that his plea was factually insufficient, the photographs found in his possession did not involve a lewd display and he was denied the effective assistance of counsel. We affirm.

Initially, defendant's challenge to the factual sufficiency andthe voluntariness of his plea is unpreserved for our review due to defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Bethel, 69 A.D.3d 1126, 1127, 894 N.Y.S.2d 205 [2010]; People v. Scitz, 67 A.D.3d 1251, 1251, 889 N.Y.S.2d 306 [2009]; People v. Harris, 51 A.D.3d 1335, 1336, 860 N.Y.S.2d 643 [2008], lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). A review of the plea colloquy reveals that defendant did not make any statements that were inconsistent with his guilt, such as to negate an essential element of the crime. Nor did defendant make any statements that called into question the voluntariness of his plea. Accordingly, the narrow exception to the preservation requirement is inapplicable ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]; People v. Stoddard, 67 A.D.3d 1055, 1055-1056, 889 N.Y.S.2d 282 [2009], lv. denied 14 N.Y.3d 806, 899 N.Y.S.2d 140, 925 N.E.2d 944 [2010]; People v. Buskey, 62 A.D.3d 1164, 1165, 880 N.Y.S.2d 716 [2009]; People v. Terry, 55 A.D.3d 1149, 1150, 867 N.Y.S.2d 556 [2008], lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009]; People v. Goodell, 13 A.D.3d 816, 817, 786 N.Y.S.2d 640 [2004], lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005] ).

Likewise, defendant's ineffective assistance of counsel claim is unpreserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Anderson, 63 A.D.3d 1191, 1193, 879 N.Y.S.2d 849 [2009], lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 543, 916 N.E.2d 438 [2009]; People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009], lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009] ). Further, to the extent that defendant's claim of ineffective assistance of counsel involves matters outside the record, such issues are more properly addressed in the context of a CPL article 440 motion ( see People v. Fiske, 68 A.D.3d 1149, 1150, 889 N.Y.S.2d 746 [2009], lv. denied 14 N.Y.3d 800, 899 N.Y.S.2d 134, 925 N.E.2d 938 [2010] ). In any event, the record reflects that defense counsel negotiated a favorable plea agreement on behalf of defendant, who stated that he had discussed the terms thereof with counsel and was satisfied with counsel's services. Accordingly, were we to reach this issue, we would conclude that defendant was afforded meaningful representation ( see People v. Scitz, 67 A.D.3d at 1252, 889 N.Y.S.2d 306; People v. Dobrouch, 59 A.D.3d 781, 873 N.Y.S.2d 759 [2009], lv. denied 12...