People v. Sheppard

Jun 13, 2003
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—Appeal from a judgment of Cayuga County Court (Corning, J.), entered July 18, 2002, convicting defendant upon his plea of guilty of sexual abuse in the first degree (two counts).

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 two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and sentencing him to consecutive terms of five years’ imprisonment. Even assuming, arguendo, that the contention of defendant that he was denied effective assistance of counsel because different attorneys represented him at the time of the plea and at sentencing survives his plea of guilty (see People v Burke, 256 AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]), we conclude that his contention is without merit (see People v Camacho, 16 NY2d 1064, 1065 [1965]; People v Torrance, 298 AD2d 857, 858 [2002], lv denied 99 NY2d 540 [2002]; cf. People v Gonzalez, 43 AD2d 914, 915 [1974]). The further contention of defendant that he was denied effective assistance of counsel because defense counsel failed to meet with him before the time of the plea is based upon matters outside the record. Thus, to the extent that defendant’s contention survives the plea (see Burke, 256 AD2d 1244 [1998]), it is properly addressed in a motion pursuant to CPL 440.10 (see People v Pike, 254 AD2d 727, 729 *842[1998]; People v Speed, 226 AD2d 1090, 1091 [1996], lv denied 88 NY2d 969 [1996]). The sentence is neither unduly harsh nor severe. Present — Green, J.P., Wisner, Scudder, Kehoe and Burns, JJ.