        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

564
KA 15-01002
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEPHEN L. MYERS, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered September 26, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree, burglary in the third degree
and grand larceny in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16), burglary in the
third degree (§ 140.20) and grand larceny in the fourth degree
(§ 155.30 [1]). Even assuming, arguendo, that defendant did not
knowingly, voluntarily and intelligently waive his right to appeal, we
nevertheless conclude that none of defendant’s contentions requires
reversal or modification of the judgment.

     We reject defendant’s contention that his plea was involuntary
because it was allegedly induced by the false promise that he would be
eligible for shock incarceration. Nothing in the record suggests that
defendant’s eligibility for shock incarceration or his admission to
that program was a condition of the plea (see People v Demick, 138
AD3d 1486, 1486, lv denied 27 NY3d 1150) and, during the plea
proceeding, defendant expressly disclaimed any off-the-record promises
(see People v Harmon, 50 AD3d 318, 319, lv denied 10 NY3d 935).

     Defendant failed to preserve for our review his challenge to the
factual sufficiency of the plea proceeding with respect to the grand
larceny count, inasmuch as his motion to withdraw the plea was made on
a different ground (see People v Gibson, 140 AD3d 1786, 1787, lv
denied 28 NY3d 1072). This case does not come within the narrow
exception to the preservation rule (see People v Lopez, 71 NY2d 662,
                                 -2-                           564
                                                         KA 15-01002

666).

     Finally, defendant’s contention that he was denied effective
assistance of counsel is based upon matters outside the record and
thus must be raised by a motion pursuant to CPL article 440 (see
People v Monaghan, 101 AD3d 1686, 1686, lv denied 23 NY3d 965).




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
