SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
757
KA 07-02335
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TRACI L. WEIR, DEFENDANT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR DEFENDANT-APPELLANT.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (KRISTYNA S. MILLS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered April 25, 2005. The judgment convicted
defendant, upon her plea of guilty, of manslaughter in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a
guilty plea of manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that she was denied effective assistance of
counsel based, inter alia, upon defense counsel’s failure to request a
mental health examination of defendant or an independent autopsy of
the victim. That contention does not survive the guilty plea inasmuch
as defendant fails even to allege, nor has she shown, that “the plea
bargaining process was infected by [the] allegedly ineffective
assistance or that defendant entered the plea because of [her]
attorney’s allegedly poor performance” (People v Robinson, 39 AD3d
1266, 1267, lv denied 9 NY3d 869 [internal quotation marks omitted];
see People v Socrates, 307 AD2d 546). In any event, defendant’s
contention lacks merit. The record establishes that defense counsel
made appropriate pretrial motions, sought relevant discovery and
preserved defendant’s right to raise defenses by filing a notice of
intent to offer psychiatric evidence, and defendant failed to
demonstrate that defense counsel lacked a legitimate reason for not
pursuing such defenses (see People v Wheeler, 249 AD2d 774, 775).
Defendant also failed to demonstrate that there was any basis for
defense counsel to request an independent autopsy (see generally id.;
People v Radtke, 152 Misc 2d 744). Finally, to the extent that
defendant relies upon matters outside the record in support of her
contention, those matters must be raised by way of a motion pursuant
to CPL article 440 (see People v Lopez, 28 AD3d 234, 235, lv denied 7
-2- 757
KA 07-02335
NY3d 758).
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court