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

174
KA 15-01886
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VERNON J. DIXON, DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN T. LEEDS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered June 12, 2015. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a weapon in the
third degree (two counts), menacing in the second degree and attempted
menacing a police officer or peace officer.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon an Alford plea of, inter alia, attempted menacing a police
officer or peace officer (Penal Law §§ 110.00, 120.18), and two counts
of criminal possession of a weapon in the third degree (§ 265.02 [1]).
Defendant contends that County Court erred in accepting his Alford
plea because the record does not contain the requisite strong evidence
of guilt or establish that the plea was the product of a voluntary and
rational choice (see generally People v Couser, 28 NY3d 368, 379).
Defendant failed to move to withdraw his plea or to vacate the
judgment of conviction and thus failed to preserve that contention for
our review (see People v Elliott, 107 AD3d 1466, 1466, lv denied 22
NY3d 996; People v Cruz, 89 AD3d 1464, 1465, lv denied 18 NY3d 993),
and we decline to exercise our power to review it as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]; People
v Zimblis, 23 AD3d 1086, 1087, lv denied 6 NY3d 783).

     Defendant further contends that the counts of the indictment
charging criminal possession of a weapon in the third degree are
defective because they expressly allege that he was previously
convicted of a crime, in violation of CPL 200.60 (1). That defect,
however, is not jurisdictional in nature (see generally People v
Dickinson, 78 AD3d 1237, 1239, revd on other grounds 18 NY3d 835;
People v Smith, 77 AD3d 990, 990-991, lv denied 16 NY3d 746), and thus
defendant’s contention was forfeited by his plea (see People v Cox,
                                 -2-                          174
                                                        KA 15-01886

275 AD2d 924, 925, lv denied 95 NY2d 962).

     To the extent that defendant’s contention that he was denied
effective assistance of counsel survives his plea (see generally
People v Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d 869), we
reject that contention. Defendant has not established that defense
counsel was ineffective in failing to move to dismiss the counts
charging criminal possession of a weapon in the third degree (see
generally People v Campbell, 17 AD3d 925, 926-927, lv denied 5 NY3d
760), and we conclude that “counsel engaged in an active defense prior
to [the negotiation of] the Alford plea, which was reasonable in its
terms” (People v Preister, 39 AD3d 1225, 1226). Even assuming,
arguendo, that defendant’s entry of his plea while represented by his
second attorney did not forfeit his right to contend that he was
denied effective assistance by his first attorney’s failure to advise
him of his right to testify before the grand jury (cf. People v Ortiz,
104 AD3d 1202, 1203), we conclude that his contention is based on
matters outside the record and must be raised by way of a motion
pursuant to CPL article 440 (see People v Gaston, 100 AD3d 1463, 1466;
People v Frazier, 63 AD3d 1633, 1634, lv denied 12 NY3d 925). The
sentence is not unduly harsh or severe.




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
