Opinion
2011–03441 2011–03442 2011–03443 Ind.Nos. 09–01315 09–01355 09–01637
03-07-2018
The PEOPLE, etc., respondent, v. Tony BRYANT, appellant.
Jerry F. Kebrdle II, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
Jerry F. Kebrdle II, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeals by the defendant from three judgments of the Supreme Court, Westchester County (Richard A. Molea, J.), all rendered March 1, 2011, convicting him of murder in the first degree, murder in the second degree, and conspiracy in the second degree under Indictment No. 09–01637, attempted criminal sale of a controlled substance in the third degree under Indictment No. 09–01315, and attempted criminal possession of a controlled substance in the third degree under Indictment No. 09–1355, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are 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 ). The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the factual sufficiency of his plea allocutions (see People v. Hutter, 154 A.D.3d 776, 63 N.Y.S.3d 391 ; People v. Thompson, 143 A.D.3d 1007, 1008, 39 N.Y.S.3d 800 ; People v. Pinero, 138 A.D.3d 763, 764, 27 N.Y.S.3d 883 ).
However, the defendant's contention that his pleas of guilty were 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 ). Contrary to the defendant's contention, the record reflects that his pleas of guilty were 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 pleas, 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 remaining contention is without merit.
AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.