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

1473
KA 10-00704
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

LUMARIO L. STRICKLAND, DEFENDANT-APPELLANT.


LEONARD, CURLEY & WALSH, PLLC, ROME (MARK C. CURLEY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered February 20, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a plea of guilty of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). The contention of defendant that he
was denied effective assistance of counsel based on defense counsel’s
failure to seek to suppress the handgun seized from the building in
which he was staying survives his plea of guilty and waiver of the
right to appeal “only insofar as he contends that his plea was
infected by the allegedly ineffective assistance and that he entered
the plea because of his attorney’s allegedly poor performance” (People
v Bethune, 21 AD3d 1316, 1316, lv denied 6 NY3d 752; see generally
People v Petgen, 55 NY2d 529, 534-535, rearg denied 57 NY2d 674).
That contention, however, involves matters outside the record on
appeal and therefore must be raised by way of a motion pursuant to CPL
article 440 (see People v Neal, 56 AD3d 1211, 1211, lv denied 12 NY3d
761; People v Jennings, 8 AD3d 1067, 1068, lv denied 3 NY3d 676).

     Defendant’s valid waiver of the right to appeal encompasses his
challenge to the severity of the sentence (see People v Lopez, 6 NY3d
248, 255-256).



Entered: February 1, 2013                          Frances E. Cafarell
                                                   Clerk of the Court
