People v. Logan

Dec 31, 2003
Versions:2 A.D.3d 1392
768 N.Y.S.2d 863
2003 N.Y. App. Div. LEXIS 14389

— Appeal from a judgment of Monroe County Court (Maloy, J.), entered September 10, 2001, convicting defendant upon his plea of guilty of assault in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05 [8]). Defendant was sentenced as a second felony offender to a determinate term of imprisonment of five years and a five-year period of postrelease supervision. The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Allen, 82 NY2d 761, 763 [1993]; People v Figueroa, 283 AD2d 943 [2001], lv denied 96 NY2d 862 [2001]). The further contention of defendant that he was denied effective assistance of counsel based on defense counsel’s failure to challenge a prior felony conviction in Virginia involves matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Reynolds, 309 AD2d 976 [2003]). The record does not specify the Virginia statute under which defendant was convicted, and thus we cannot determine whether there is a comparable statute in New York (see generally People v Gonzalez, 61 NY2d 586, 588-589 [1984]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Gorski, JJ.