People v. Hughes

Sep 30, 2005
Appeal No. 2
Versions:21 A.D.3d 1394
801 N.Y.S.2d 208

Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered September 13, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree and unlawfully dealing with a child in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31) and unlawfully dealing with a child in the first degree (§ 260.20 [1]) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the fifth degree (§ 220.31). The valid waivers by defendant of his right to appeal with respect to both pleas of guilty encompass his challenges to the factual sufficiency of the respective plea allocutions (see People v Turner, 16 AD3d 1150 [2005]; People v Chrispen, 306 AD2d 916 [2003], lv denied 100 NY2d 619 [2003]) and the severity of the respective sentences (see People v Lococo, 92 NY2d 825, 827 [1998]), as well as his contention that the indictments should have been consolidated (see People v Verrone, 266 AD2d 16, 18 [1999]). The further contention of defendant that his pleas were not knowingly and voluntarily entered survives the waivers of the right to appeal, but defendant failed to preserve his contention for our review by moving to withdraw the pleas or to vacate the judgments of conviction (see Chrispen, 306 AD2d 916 [2003]). Finally, the contention of defendant that he was denied his right to effective assistance of counsel is based upon matters outside the record and thus is appropriately raised in a motion pursuant to CPL 440.10 (see People v Walton, 14 AD3d 419, 420 [2005]). Present—Pigott, Jr., P.J., Green, Gorski, Smith and Lawton, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v LEON D. HUGHES, Appellant. (Appeal No. 2.) [801 NYS2d 208]—Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered September 13, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Same memorandum as in People v Hughes (21 AD3d 1394 [2005]). Present—Pigott, Jr., P.J., Green, Gorski, Smith and Lawton, JJ.