Opinion
2016–04086 Ind.No. 932/14
09-19-2018
The PEOPLE, etc., respondent, v. Jonathan BIRD, appellant.
Mark Diamond, New York, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy of counsel; Matthew C. Frankel on the brief), for respondent.
Mark Diamond, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy of counsel; Matthew C. Frankel on the brief), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (David P. Sullivan, J.), rendered April 25, 2016, convicting him of robbery in the second degree and assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bryant, 159 A.D.3d 715, 716, 69 N.Y.S.3d 496 ).
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid waiver of the right to appeal (see People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ). However, the record reflects that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ).
The defendant's claim that he was deprived of the constitutional right to the effective assistance of counsel, which affected the voluntariness of his plea, 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 ). 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 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. Carter, 151 A.D.3d 877, 878, 58 N.Y.S.3d 406 ; People v. Cunningham, 103 A.D.3d 916, 916–917, 962 N.Y.S.2d 268 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contentions regarding the propriety of the Supreme Court's suppression ruling, the propriety of the procedure used to adjudicate him a second violent felony offender, and the alleged excessiveness of his sentence (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Sanders, 25 N.Y.3d at 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Williams, 36 N.Y.2d 829, 830, 370 N.Y.S.2d 904, 331 N.E.2d 684 ; People v. Darrow, 161 A.D.3d 1000, 73 N.Y.S.3d 764 ; People v. Rohs, 140 A.D.3d 800, 30 N.Y.S.3d 888 ).
MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.