Opinion
2022–05717, 2022–05719 S.C.I. Nos. 274/21, 733/21
11-08-2023
The PEOPLE, etc., respondent, v. Fernando BAUTISTA, appellant.
Marianne Karas, Thornwood, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Brian R. Pouliot and Raffaelina Gianfrancesco of counsel), for respondent.
Marianne Karas, Thornwood, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Brian R. Pouliot and Raffaelina Gianfrancesco of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.
DECISION & ORDER
Appeals by the defendant from two judgments of the County Court, Westchester County (Alexandra D. Murphy, J.), both rendered April 26, 2022, convicting him of grand larceny in the fourth degree under Superior Court Information No. 274/21 and burglary in the third degree under Superior Court Information No. 733/21, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant's contention that his pleas of guilty were effectively coerced by the poor conditions of his pretrial confinement is unpreserved for appellate review, as he did not move to withdraw his pleas or otherwise raise this issue in the County Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Morales, 202 A.D.3d 997, 159 N.Y.S.3d 731 ). In any event, his contention is not supported by the record before this Court. While the defendant made comments on the record regarding the poor conditions of his pretrial confinement, these statements were made as part of a list of challenges he faced. The defendant concluded this list with a request for an adjournment to think about the plea offer, to which the County Court agreed. Nothing on the record evinces that the defendant's decision thereafter to accept the plea offer was affected or influenced by the circumstances of his pretrial confinement (see People v. Harrington, 165 A.D.3d 1342, 1343, 85 N.Y.S.3d 612 ). Further, the defendant confirmed during the plea allocution that he was pleading guilty voluntarily (see People v. Oden, 150 A.D.3d 1269, 1270, 53 N.Y.S.3d 545 ). Accordingly, there is no basis in the record before us to disturb the judgments of conviction (see People v. Jones, 217 A.D.3d 884, 189 N.Y.S.3d 746 ; People v. Harrington, 165 A.D.3d at 1343, 85 N.Y.S.3d 612 ).
The defendant's claim of ineffective assistance of counsel 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 ). 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, and we decline to review the claim on these direct appeals (see 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 ).
IANNACCI, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.