People v. Garner

Appeal from a judgment of the County Court of Chemung County (Monroe, J.), rendered October 15,1982, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree. Defendant entered a plea of guilty to attempted assault in the second degree as charged in the indictment. He allegedly struck a nurse, William Schmidt, in the face with his fist on May 6, 1982. The record presented on appeal indicates that defendant entered a voluntary and knowing plea of guilty. The sentence imposed of one and one-half to three years’ imprisonment to run consecutive to the sentence he was then serving was not excessive, nor was it an infliction of a cruel and unusual punishment. On the basis of the record, defendant was adequately represented by counsel. We note that defendant did not state to the court at any time after his plea was taken that he was innocent. Further inquiry of him was not shown to be necessary (see People v Francis, 38 NY2d 150 ). However, in the record on this appeal, defendant improperly includes allegations and factual matters which were not a part of the record before County Court. The proper method of obtaining review of the issues raised by such material is by the procedures covered by CPL article 440 {People v Roberts, 89 AD2d 912 ; People v Johnson, 73 AD2d 652 ; People v Mann, 42 AD2d 587). The matters not properly a part of the record were not considered in arriving at our decision. The judgment of conviction should be affirmed. Judgment affirmed. Kane, J. P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.