People v. Shell

• Decision Date: 18 May 2010
• Citation: 902 N.Y.S.2d 367,73 A.D.3d 1095
• Parties: The PEOPLE, etc., respondent, v. Curtis S. SHELL, appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 367 73 A.D.3d 1095 The PEOPLE, etc., respondent, v. Curtis S. SHELL, appellant. Supreme Court, Appellate Division, Second Department, New York. May 18, 2010.

Salvatore C. Adamo, New York, N.Y., for appellant.

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 (Hayes, J.), rendered January 9, 2007, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Since the defendant failed to move to withdraw his plea prior to sentencing, his contention on appeal that his plea was not knowingly, voluntarily, and intelligently entered has not been preserved for appellate review ( see CPL 470.05[2]; People v. Antoine, 59 A.D.3d 560, 872 N.Y.S.2d 283; People v. Castillo-Cordero, 54 A.D.3d 1054, 864 N.Y.S.2d 567; People v. Bevins, 27 A.D.3d 572, 811 N.Y.S.2d 429; People v. Martin, 7 A.D.3d 640, 776 N.Y.S.2d 499). In any event, the record demonstrates that his plea of guilty was knowingly, voluntarily, and intelligently made ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709). To the extent that the defendant's contentions regarding any alleged ineffective assistance of counsel rest on matter outside the record, they are not reviewable on direct appeal ( see People v. Ali, 55 A.D.3d 919, 865 N.Y.S.2d 579; People v. Drago, 50 A.D.3d 920, 855 N.Y.S.2d 252). Insofar as the contentionsare reviewable, we find that the defendant received meaningful representation ( see People v. Drago, 50 A.D.3d 920, 855 N.Y.S.2d 252; People v. Brooks, 36 A.D.3d 929, 930, 828 N.Y.S.2d 553; People v. Grimes, 35 A.D.3d 882, 883, 827 N.Y.S.2d 268).

Since the defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed, he has no basis now to complain that the sentence was excessive ( see People v. De Alvarez, 59 A.D.3d 732, 873 N.Y.S.2d 724; People v. Fanelli, 8 A.D.3d 296, 777 N.Y.S.2d 320; People v. Mejia, 6 A.D.3d 630, 631, 774 N.Y.S.2d 801; People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351). In any event, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

RIVERA, J.P., FLORIO, DIC...