People v. Baker , 869 N.Y.2d 843 ( 2008 )

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10 [1]). Defendant failed to preserve for our review his contention that County Court erred in ordering restitution without conducting a hearing, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Perry, 50 AD3d 1556 [2008], lv denied 10 NY3d 963 [2008]). To the extent that the further contention of defendant that he was denied effective assistance of counsel survives the plea (see People v Santos, 37 AD3d 1141 [2007], lv denied 8 NY3d 950 [2007]), it concerns matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Leno, 21 AD3d 1399 [2005], lv denied 5 NY3d 883 [2005]; People v Michalski, 15 AD3d 918, 919 [2005], lv denied 5 NY3d 854 [2005], 6 NY3d 756 [2005] , cert denied 547 US 1077 [2006], reh denied 547 US 1176 [2006] ). Present — Hurlbutt, J.E, Centra, Fahey and Peradotto, JJ.