People v. Frazier, 63 A.D.3d 1633 (N.Y. App. Div. 2009). · Go Syfert
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People v. Frazier, 63 A.D.3d 1633 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · …involves matters outside the record on appeal and thus is properly raised by way of a motion pursuant to cpl article 440 at p. 1634 ✓ Topic ↗
23 citation events (23 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Quick
N.Y. App. Div. · 2020 · confidence medium
We agree with the People that defendant's contention involves matters that are outside the record on appeal and thus must be raised, if at all, by way of a CPL article 440 motion ( see People v Balenger , 70 AD3d 1318, 1318 [4th Dept 2010], lv denied 14 NY3d 885 [2010]; People v Frazier , 63 AD3d 1633, 1634 [4th Dept 2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Gizowski
N.Y. App. Div. · 2020 · confidence medium
Defendant did not seek to vacate his plea on the ground of ineffective assistance of counsel, and his appellate contention that vacatur is warranted on that basis is therefore unpreserved for our review ( see People v Frazier , 63 AD3d 1633, 1633-1634 [4th Dept 2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Colbert
N.Y. App. Div. · 2019 · confidence medium
The plea allocution establishes that the oral waiver was voluntarily, knowingly, and intelligently entered, even though defendant gave one-word answers to County Court's questions ( see People v Frazier , 63 AD3d 1633, 1633 [4th Dept 2009], lv denied 12 NY3d 925 [2009]; cf. People v Wilson , 159 AD3d 1542 , 1544 [4th Dept 2018], lv denied 31 NY3d 1154 [2018]).
discussed Cited as authority (rule) People v. Judge
N.Y. App. Div. · 2019 · confidence medium
Further, "[t]he plea allocution establishes that the waiver of the right to appeal was voluntarily, knowingly, and intelligently entered . . . , even though some of defendant's responses to [Supreme Court's] inquiries were monosyllabic" ( People v Frazier , 63 AD3d 1633, 1633 [4th Dept 2009], lv denied 12 NY3d 925 [2009] [internal quotation marks omitted]).
discussed Cited as authority (rule) People v. Dixon
N.Y. App. Div. · 2017 · confidence medium
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 [2013]), 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 [2012]; People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Dixon
N.Y. App. Div. · 2017 · confidence medium
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 [2013]), 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 [2012]; People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
cited Cited as authority (rule) People v. M&M Medical Transport, Inc.
N.Y. App. Div. · 2017 · confidence medium
In any event, the valid waiver by defendant of the right to appeal encompasses the contention (see People v Frazier, 63 AD3d 1633, 1633 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Carver
N.Y. App. Div. · 2015 · confidence medium
To the extent that defendant contends that defense counsel’s apparent failure to understand the nature of the DNA evidence may have affected the advice counsel gave to defendant as to whether to accept the People’s plea offer, such contention is based on “matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440” (People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Carver
N.Y. App. Div. · 2015 · confidence medium
To the extent that defendant contends that defense counsel’s apparent failure to understand the nature of the DNA evidence may have affected the advice counsel gave to defendant as to whether to accept the People’s plea offer, such contention is based on “matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440” (People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Kreutter
N.Y. App. Div. · 2014 · confidence medium
Defendant’s contention that he was denied effective assistance of counsel by his prior attorney’s failure to allow him to testify before the grand jury “involves matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440” (People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Kreutter
N.Y. App. Div. · 2014 · confidence medium
Defendant’s contention that he was denied effective assistance of counsel by his prior attorney’s failure to allow him to testify before the grand jury “involves matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440” (People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. O'Neill
N.Y. App. Div. · 2014 · confidence medium
Defendant’s claim that he was denied the effective assistance of counsel due to counsel’s alleged failure to seek County Court’s recusal is similarly unpreserved absent evidence of an appropriate postal-locution motion upon that ground (see People v Frazier, 63 AD3d 1633, 1633-1634 [2009], lv denied 12 NY3d 925 [2009]; People v Mahipat, 49 AD3d 1243, 1244 [2008]; People v Leonard, 37 AD3d 1148, 1149 [2007], lv denied 8 NY3d 947 [2007]).
discussed Cited as authority (rule) People v. O'Neill
N.Y. App. Div. · 2014 · confidence medium
Defendant’s claim that he was denied the effective assistance of counsel due to counsel’s alleged failure to seek County Court’s recusal is similarly unpreserved absent evidence of an appropriate postal-locution motion upon that ground (see People v Frazier, 63 AD3d 1633, 1633-1634 [2009], lv denied 12 NY3d 925 [2009]; People v Mahipat, 49 AD3d 1243, 1244 [2008]; People v Leonard, 37 AD3d 1148, 1149 [2007], lv denied 8 NY3d 947 [2007]).
discussed Cited as authority (rule) GARDNER, III, WALTER A., PEOPLE v
N.Y. App. Div. · 2012 · confidence medium
To the extent that defendant contends that defense counsel’s alleged failure to communicate with him constituted ineffective assistance, it is based upon matters outside the record and thus may only be raised by way of a motion pursuant to CPL article 440 (see People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Watkins
N.Y. App. Div. · 2010 · confidence medium
The contention of defendant that he was denied his right to testify before the grand jury “is ‘foreclosed by defendant’s valid waiver of- the right 'to appeal as well as by defendant’s plea of guilty’ ” (People v Frazier, 63 AD3d 1633, 1633 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited as authority (rule) People v. Balenger
N.Y. App. Div. · 2010 · confidence medium
To the extent that defendant’s contention is based on the alleged failure of defense counsel to advise defendant of his right to testify, that part of defendant’s contention involves matters outside the record on appeal and is thus properly raised by way of a motion pursuant to CPL article 440 (see People v Frazier, 63 AD3d 1633, 1634 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited "see" People v. Barzee
N.Y. App. Div. · 2022 · signal: see · confidence high
Here, defendant's contention "is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a mixed claim of ineffective assistance" ( Johnson , 195 AD3d at 1421 [internal quotation marks omitted]; see People v Frazier , 63 AD3d 1633, 1634 [4th Dept 2009], lv denied 12 NY3d 925 [2009]).
discussed Cited "see, e.g." People v. Russell
N.Y. App. Div. · 2015 · signal: see also · confidence medium
Defendant’s challenges to the search warrant are encompassed by his valid waiver of the right to appeal (see People v Garland, 69 AD3d 1122, 1123 [2010], lv denied 14 NY3d 887 [2010]; see also People v Frazier, 63 AD3d 1633, 1633 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited "see, e.g." People v. Russell
N.Y. App. Div. · 2015 · signal: see also · confidence medium
Defendant’s challenges to the search warrant are encompassed by his valid waiver of the right to appeal (see People v Garland, 69 AD3d 1122, 1123 [2010], lv denied 14 NY3d 887 [2010]; see also People v Frazier, 63 AD3d 1633, 1633 [2009], lv denied 12 NY3d 925 [2009]).
discussed Cited "see, e.g." RUSSELL, DASHAWN L., PEOPLE v
N.Y. App. Div. · 2015 · signal: see also · confidence low
Defendant’s challenges to the search warrant are encompassed by his valid waiver of the right to appeal (see People v Garland, 69 AD3d 1122, 1123 , lv denied 14 NY3d 887 ; see also People v Frazier, 63 AD3d 1633, 1633 , lv denied 12 NY3d 925 ).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Demons R. Frazier
Appellate Division of the Supreme Court of the State of New York.
Jun 5, 2009.
63 A.D.3d 1633
Cited by 23 opinions  |  Published

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered June 6, 2007. The judgment convicted defendant, upon his plea of guilty, of rape in the third 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 rape in the third degree (Penal Law § 130.25 [2]), defendant contends that he did not validly waive his right to appeal. We reject that contention (see People v Calvi, 89 NY2d 868, 871 [1996]; People v Brown [Sean], 41 AD3d 1234 [2007] , lv denied 9 NY3d 873 [2007]). “The plea allocution establishes that the waiver of the right to appeal was voluntarily, knowingly, and intelligently entered . . . , even though some of defendant’s responses to [County Court’s] inquiries were monosyllabic” (Brown, 41 AD3d at 1234 [internal quotation marks omitted]; see People v Wilson, 38 AD3d 1348 [2007], lv denied 9 NY3d 927 [2007]). The valid waiver by defendant of the right to appeal encompasses his contention that the court erred in denying his motion to dismiss the indictment on the ground that the search of his vehicle was illegal, requiring suppression of the fruits of that search, and in failing to conduct a hearing with respect to the legality of the police conduct during the search (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Williams, 49 AD3d 1281 [2008], lv denied 10 NY3d 940 [2008] ).

The contention of defendant in his pro se supplemental brief that he was denied his right to testify before the grand jury is “foreclosed by defendant’s valid waiver of the right to appeal as well as by defendant’s plea of guilty” (People v Duzant, 15 AD3d 860, 861 [2005], lv denied 5 NY3d 761 [2005] [internal quotation marks omitted]; see People v Sachs, 280 AD2d 966 [2001], lv denied 96 NY2d 834 [2001], 97 NY2d 708 [2002]). To the extent that the further contention of defendant in his pro se supplemental brief concerning ineffective assistance of counsel survives the guilty plea and waiver of the right to appeal, defendant failed to preserve that contention for our review “inasmuch as he did[*1634] not move to withdraw his plea or to vacate the judgment of conviction on that ground” (People v White, 37 AD3d 1112, 1113 [2007]; see People v Hall, 50 AD3d 1467, 1468-1469 [2008], lv denied 11 NY3d 789 [2008]). Finally, to the extent that defendant’s contention with respect to ineffective assistance of counsel is based on defense counsel’s alleged failure to discuss the case with defendant, to secure defendant’s right to testify before the grand jury or to move to suppress certain medical records, the contention involves matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440 (see Hall, 50 AD3d at 1469; People v Leno, 21 AD3d 1399 [2005], lv denied 5 NY3d 883 [2005]). Present— Scudder, PJ., Martoche, Fahey, Garni and Pine, JJ.