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

586
KA 13-01550
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ANTHONY J. MANGIARELLA, DEFENDANT-APPELLANT.


TYSON BLUE, CANANDAIGUA, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered January 9, 2013. The judgment convicted
defendant, upon his plea of guilty, of rape in the second degree
(three counts).

     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 three counts of rape in the second degree
(Penal Law § 130.30 [1]). Defendant contends that he was denied
effective assistance of counsel because his first attorney failed to
resolve the case pursuant to a preindictment plea offer that would
have resulted in a less severe sentence (see generally Lafler v
Cooper, ___ US ___, ___, 132 S Ct 1376, 1384-1385). Although that
contention survives defendant’s guilty plea inasmuch as he contends
that his plea was infected by the alleged ineffective assistance (see
People v Peterson, 56 AD3d 1230, 1230), it involves matters outside
the record on appeal, including “attorney-client consultations and the
attorney’s plea-bargaining strategy” (People v Harmon, 50 AD3d 318,
319, lv denied 10 NY3d 935), and thus is properly raised by way of a
motion pursuant to CPL 440.10 (see People v Manor, 121 AD3d 1581,
1583; People v Flowers, 309 AD2d 1237, 1238, lv denied 1 NY3d 571;
People v Bennett, 277 AD2d 1008, 1008, lv denied 96 NY2d 780).




Entered:    May 1, 2015                            Frances E. Cafarell
                                                   Clerk of the Court
