Opinion
2016–08070 S.C.I. No. 103/14
05-16-2018
The PEOPLE, etc., respondent, v. Marcus BLACK, appellant.
Salvatore C. Adamo, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
SHERI S. ROMAN, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered July 19, 2016, convicting him of grand larceny in the fourth degree and petit larceny, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly determined, after a hearing, that the defendant violated the terms of a cooperation agreement (see People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; People v. Warde, 45 A.D.3d 879, 879–880, 847 N.Y.S.2d 144 ).
The defendant's contention that his attorney was ineffective for failing to move to withdraw his plea is based, in part, on matter outside the record and, thus, constitutes a mixed claim of ineffective assistance (see People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see also People v. Moore, 84 A.D.3d 1411, 1412, 924 N.Y.S.2d 297 ; People v. Paugam, 57 A.D.3d 1012, 1012, 871 N.Y.S.2d 328 ). 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 (see People v. Murray, 154 A.D.3d 881, 883, 63 N.Y.S.3d 82 ). 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. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant was properly sentenced as a second felony offender (see CPL 400.15 ; People v. Johnson, 157 A.D.3d 817, 66 N.Y.S.3d 885 ). The County Court's failure to make a formal inquiry as to whether the defendant wished to controvert the allegations of the second felony offender statement was a harmless oversight (see People v. McAllister, 47 A.D.3d 731, 731–732, 850 N.Y.S.2d 495 ; see also People v. Sanabria, 110 A.D.3d 1010, 973 N.Y.S.2d 326 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.