People v MortonPeople v Morton
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 29, 2016, which revoked defendant‘s probation and imposed a sentence of imprisonment.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with attempted criminal possession of a controlled substance in the third degree. He pleaded guilty to that crime and waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced to time served and five years of probation. However, defendant was subsequently charged with violating various conditions of his probation. At the conclusion of a hearing on the probation violations, County Court determined that defendant had violated his probation by possessing a firearm.1 Consequently, the court revoked his probation and resentenced him to 51/2 years in prison, followed by two years of postrelease supervision. Defendant appeals.
Defendant‘s challenges related to his underlying judgment of conviction—arguments concerning the voluntariness of his plea and alleged ineffectiveness of counsel prior to and during the plea proceeding—cannot be raised on the appeal from the judgment resentencing him following the revocation of his probation (see People v Pozzi, 117 AD3d 1325, 1325 [2014]; People v Daniels, 106 AD3d 1189, 1189 [2013], lv denied 21 NY3d 1014 [2013]; People v Pittman, 17 AD3d 930, 931 n [2005], lv denied 5 NY3d 767 [2005]).2 The record does not support defendant‘s arguments that he was deprived of meaningful representation at the probation violation hearing. Any other arguments concerning the ineffectiveness of counsel rely on information outside the record and would be more appropriately addressed in a
Defendant‘s “current challenge to the severity of the sentence imposed upon the revocation of his probation is not precluded by his waiver of appeal entered in connection with his original guilty plea and sentence” (People v Middlemiss, 149 AD3d 1419, 1420 [2017]). Nevertheless, defendant possessed a loaded weapon within months of being placed on probation, resulting in his conviction of another felony. Although the sentence he received was the maximum that could be imposed for the crime of attempted criminal possession of a controlled substance in the third degree (see
Garry, P.J., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment is affirmed.