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

562
KA 12-00893
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LARRY WILLIAMS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LARRY WILLIAMS, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered December 10, 2010. The judgment
convicted defendant, upon his plea of guilty, of arson in the second
degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of arson in the second degree (Penal Law § 150.15),
defendant contends in his main brief on appeal that his statements to
the police were not preceded by Miranda warnings and thus that Supreme
Court erred in refusing to suppress those statements. We reject that
contention. “ ‘Where, as here, the People have initially demonstrated
the legality of the police conduct and defendant’s waiver, the burden
of persuasion on the motion to suppress rests with defendant’ ”
(People v Dunlap, 24 AD3d 1318, 1319, lv denied 6 NY3d 812). Contrary
to defendant’s contention, he failed to meet his burden. The minor
inconsistencies in the testimony of the police witnesses at the
suppression hearing concerning the precise time when the warnings were
provided does not undermine the court’s determination that those
witnesses were credible (see People v Shaw, 66 AD3d 1417, 1418, lv
denied 14 NY3d 773). Defendant’s remaining contentions with respect
to suppression of items seized as a result of his statements are moot
in light of our determination. Defendant failed to preserve for our
review his contention in his pro se supplemental brief that the police
arrested him without probable cause inasmuch as “he failed to request
a probable cause hearing or to raise that contention at the Huntley
hearing” (People v Mobley, 49 AD3d 1343, 1344, lv denied 11 NY3d 791;
see People v Watson, 90 AD3d 1666, 1667, lv denied 19 NY3d 868). We
                                 -2-                           562
                                                         KA 12-00893

decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]).

     Defendant’s further contention in his main brief that his plea
was not knowing, intelligent and voluntary because he did not recite
the underlying facts of the crime “is actually a challenge to the
factual sufficiency of the plea allocution” (People v McCarthy, 83
AD3d 1533, 1534, lv denied 17 NY3d 819 [internal quotation marks
omitted]). That challenge is unpreserved for our review because
defendant did not move to withdraw the plea or to set aside the
judgment of conviction (see People v Lopez, 71 NY2d 662, 665). In any
event, “[t]he record establishes that defendant confirmed the accuracy
of Supreme Court’s recitation of the facts underlying the crime, and
contrary to [his] contention, there is no requirement that [he]
personally recite those facts” (People v Whipple, 37 AD3d 1148, 1148,
lv denied 8 NY3d 928; see People v Simcoe, 74 AD3d 1858, 1859, lv
denied 15 NY3d 778).

      Defendant also contends in his pro se supplemental brief that he
was denied effective assistance of counsel. That contention “involves
matters outside the record on appeal, and thus the proper procedural
vehicle for raising [it] is by way of a motion pursuant to CPL 440.10”
(People v Wilson, 49 AD3d 1224, 1225, lv denied 10 NY3d 966; see
People v Johnson, 81 AD3d 1428, 1428, lv denied 16 NY3d 896; People v
Cobb, 72 AD3d 1565, 1567, lv denied 15 NY3d 803). He further
challenges therein his adjudication as a second felony offender on the
ground that the underlying conviction was obtained in violation of his
constitutional rights. That challenge is not properly before us.
“Defendant did not challenge the predicate felony statement submitted
by the People pursuant to CPL 400.21 and may not challenge his second
felony offender status for the first time on appeal” (People v Brown,
207 AD2d 962, 962, lv denied 85 NY2d 860; see People v Smith, 73 NY2d
961, 962-963; People v Fidler, 28 AD3d 1220, 1221, lv denied 7 NY3d
755).

     Finally, we reject defendant’s challenge in his main brief to the
severity of the sentence.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
