Opinion
2014-00389, Ind. No. 670/09.
05-25-2016
The PEOPLE, etc., respondent, v. Joanne BAKER, appellant.
Marshall L. Goldstein, White Plains, N.Y., for appellant. James A. McCarty, Acting District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.
Marshall L. Goldstein, White Plains, N.Y., for appellant.
James A. McCarty, Acting District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.
Opinion Appeal by the defendant from an amended judgment of the County Court, Westchester County (Warhit, J.), rendered November 19, 2013, which, upon a finding that she violated a condition of the probation previously imposed by the same court (Zambelli, J.), upon her admission, imposed, inter alia, an extended period of probation. ORDERED that the amended judgment is affirmed.
Following the defendant's admission to a violation of probation, the County Court modified her sentence by tolling the five-year period of probation for a period of nine months from February 19, 2013, through November 19, 2013, thereby adding nine months to the term of probation, with the same terms and conditions and the addition of 100 hours of community service.
The defendant challenges the original probation condition that bars her from reapplying for her dentistry license. However, this Court's rejection of the defendant's claim on her prior appeal (see People v. Baker, 104 A.D.3d 783, 784, 960 N.Y.S.2d 511 ) “constitutes the law of the case, and, absent a showing of ‘manifest error’ in the prior decision or that ‘exceptional circumstances exist warranting departure from the law of the case doctrine,’ the defendant is precluded from having this issue reconsidered” (People v. Martinez, 194 A.D.2d 741, 741–742, 600 N.Y.S.2d 250, quoting People v. Barnes, 155 A.D.2d 468, 469, 547 N.Y.S.2d 131 ; see People v. Riley, 22 A.D.3d 609, 610, 802 N.Y.S.2d 251 ; People v. Taylor, 87 A.D.2d 771, 772, 450 N.Y.S.2d 370, affd. 57 N.Y.2d 729, 454 N.Y.S.2d 976, 440 N.E.2d 1323 ). There is no basis here for reconsideration of that issue (see Penal Law § 65.10[1] ; People v. Griffith, 239 A.D.2d 705, 706, 657 N.Y.S.2d 823 ; People v. Eaddy, 200 A.D.2d 896, 897, 606 N.Y.S.2d 928 ). To the extent the defendant contends that she was deprived of her right to the effective assistance of counsel, her waiver of her right to appeal precludes appellate review of that contention, except to the extent that the alleged ineffective assistance may have affected the voluntariness of her admission (see People v. Pryor, 12 A.D.3d 695, 784 N.Y.S.2d 896 ). Insofar as the defendant may be understood to contend that counsel's alleged conflict of interest undermined the voluntariness of her admission, this 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” (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Marryshow, 135 A.D.3d 964, 965, 24 N.Y.S.3d 170 ; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ). The defendant's remaining contention is without merit.