                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   104758
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAMEL CARLTON,
                    Appellant.
________________________________


Calendar Date:   August 21, 2014

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


     Tara Brower Wells, Latham, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered November 17, 2011, convicting defendant
upon his plea of guilty of the crime of criminal possession of
stolen property in the fourth degree.

      After a traffic stop around 12:30 a.m. on May 10, 2011,
defendant was arrested for unlawful possession of marihuana and
aggravated unlicensed operation of a motor vehicle, and on an
outstanding warrant for unrelated charges. After it was
determined that items found in a purse recovered from defendant's
vehicle during the traffic stop had been taken from their owner
by defendant and others during a gun-point robbery, he was
charged by felony complaint with three counts of criminal
possession of stolen property in the fourth degree. Following a
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preliminary hearing on the felony complaint, County Court
determined that there was reasonable cause to believe that
defendant had committed the felony of criminal possession of
stolen property in the fourth degree and held the matter over for
grand jury action. An Ulster County grand jury thereafter
charged defendant with three counts of criminal possession of
stolen property in the fourth degree, and his motion to dismiss
the indictment for failure to afford him an opportunity to
testify before the grand jury was denied. Defendant thereafter
entered a guilty plea to one count of criminal possession of
stolen property in the fourth degree in satisfaction of all
charges in the indictment, and received the agreed-upon prison
sentence, as a second felony offender, of 2 to 4 years, with
restitution. Defendant now appeals.

      By pleading guilty, defendant forfeited the claims that he
was entitled to notice of the grand jury proceedings and denied
his statutory right to testify (see CPL 190.50 [5] [a]; People v
Steed, 17 AD3d 928, 929 [2005], lv denied 5 NY3d 770 [2005];
People v Harris, 293 AD2d 818, 819 [2002], lv denied 98 NY2d 676
[2002]; People v Grey, 135 AD2d 1031, 1031 [1987]; see also
People v Taylor, 65 NY2d 1, 5 [1985]). Defendant's "appearance
before the grand jury would have been for the purpose of giving
testimony relating to his guilt or innocence" (People v Grey, 135
AD2d at 1032), and "his plea of guilty removed this issue from
the case" (People v Harris, 293 AD2d at 819). Moreover, the
record reflects that, after the preliminary hearing, the felony
complaint was "disposed of" and defendant was held for grand jury
action (CPL 180.70 [1]) and, as such, he was no longer subject to
an "undisposed of felony complaint" in a local criminal court so
as to entitle him to notice of grand jury proceedings under CPL
160.50 (5) (a) (see People v Boodrow, 42 AD3d 582, 584 [2007];
People v Brooks, 26 AD3d 739, 740 [2006], lvs denied 6 NY3d 846,
7 NY3d 810 [2006]).

      Next, defendant's insistence that he would not have pleaded
guilty but for counsel's alleged deficiencies is undermined by
the fact that, while he complained about the representation at
sentencing, he declined County Court's invitation to withdraw his
guilty plea. Even assuming that defense counsel failed to
facilitate defendant's appearance at the grand jury, which is not
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established in the record, this would be insufficient to
constitute ineffective assistance of counsel; defendant has not
shown that he was prejudiced by that failure, nor made any
showing that the outcome would have been different had he
testified (see People v Simmons, 10 NY3d 946, 949 [2008]; People
v Lasher, 74 AD3d 1474, 1475-1476 [2010], lv denied 15 NY3d 894
[2010]). Morever, counsel vigorously represented defendant at
the preliminary hearing, timely moved to dismiss the indictment
pursuant to CPL 190.50 (5) (a) based upon the one day notice
provided of the grand jury proceedings, and obtained a favorable
plea deal, and the record as a whole reflects that counsel
provided meaningful representation (see People v Henry, 95 NY2d
563, 565 [2000]). To the extent that defendant raises claims
regarding what counsel advised him or investigated, they concern
matters outside the record on appeal, which are more properly
addressed in a motion to vacate the judgment pursuant to CPL
article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012]; People
v Morey, 110 AD3d 1378, 1379-1380 [2013], lv denied 23 NY3d 965
[2014]), and his contentions that he was not apprised of his
potential sentencing exposure or the parameters of the plea
agreement are belied by the record.

     McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
