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

789
KA 10-00056
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BLAIR CHATTLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment   of the Supreme Court, Erie County
(Christopher J. Burns, J.),   rendered August 27, 2009. The appeal was
held by this Court by order   entered November 18, 2011, decision was
reserved and the matter was   remitted to Supreme Court, Erie County,
for further proceedings (89   AD3d 1557). The proceedings were held and
completed.

     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 stolen property in
the fourth degree (Penal Law § 165.45 [5]) and reckless endangerment
in the first degree (§ 120.25). We previously held this case,
reserved decision and remitted the matter to Supreme Court to rule on
defendant’s motion to withdraw his guilty plea (People v Chattley, 89
AD3d 1557). Upon remittal, the court denied the motion, and we now
affirm.

     Although defendant contends that the court erred in denying his
pro se motion to withdraw his plea, the motion papers are not included
in the record on appeal, and thus defendant failed to meet his burden
of providing us with a complete record (see generally People v
Kinchen, 60 NY2d 772, 774; People v Taylor, 231 AD2d 945, 946, lv
denied 89 NY2d 930). In any event, based on the record before us, we
perceive no reason to conclude that the court erred in denying the
motion.

     Defendant’s further contention that he was deprived of effective
assistance of counsel does not survive his waiver of the right to
appeal, the validity of which he does not challenge, inasmuch as
defendant “ ‘failed to demonstrate that the plea bargaining process
                                 -2-                          789
                                                        KA 10-00056

was infected by [the] allegedly ineffective assistance or that
defendant entered the plea because of [defense counsel’s] allegedly
poor performance’ ” (People v Lucieer, ___ AD3d ___, ___ [June 14,
2013]). Here, defendant does not assert that his motion to withdraw
his plea was based on grounds of ineffective assistance of counsel,
nor does he suggest that, but for defense counsel’s errors or
omissions, he would not have pleaded guilty. Indeed, the alleged
failings of defense counsel, who, according to defendant, took a
position adverse to his interests, occurred after defendant entered
his plea.




Entered:   July 19, 2013                       Frances E. Cafarell
                                               Clerk of the Court
