Opinion
04-05-2017
The PEOPLE, etc., respondent, v. Trevior CAINE, appellant.
Karen A. Sferlazzo, Warwick, NY, for appellant. David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz of counsel), for respondent.
Karen A. Sferlazzo, Warwick, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered November 30, 2012, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant correctly contends that his purported waiver of the right to appeal is invalid, as it is not evident on the face of the record that the defendant understood the appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Contrary to the defendant's contention, the County Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty, as there was no evidence of innocence and he was not coerced into pleading guilty (see People v. Pelaez, 100 A.D.3d 803, 804, 954 N.Y.S.2d 554 ; People v. Caruso, 88 A.D.3d 809, 810, 930 N.Y.S.2d 668 ; People v. Miranda, 67 A.D.3d 709, 710, 886 N.Y.S.2d 890 ; People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ; People v. Beasley, 50 A.D.3d 697, 697–698, 853 N.Y.S.2d 917 ; People v. Mann, 32 A.D.3d 865, 866, 821 N.Y.S.2d 616 ). Further, the record demonstrates that he pleaded guilty voluntarily, knowingly and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ).
The defendant did not preserve for appellate review the issue of the sufficiency of the plea allocution because he did not raise this specific ground in his motion to withdraw his plea (see People v. Rivera, 1 A.D.3d 385, 386, 766 N.Y.S.2d 863 ). In any event, this argument is without merit (see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Duncan, 78 A.D.3d 1193, 1193, 912 N.Y.S.2d 283 ; People v. Hronopoulos, 192 A.D.2d 720, 720, 598 N.Y.S.2d 733 ).
The defendant's claim of ineffective assistance of counsel is based, in part, upon 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 (see People v. Marryshow, 135 A.D.3d 964, 965, 24 N.Y.S.3d 170 ; 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, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's claim in its entirety (see People v. Marryshow, 135 A.D.3d at 965, 24 N.Y.S.3d 170 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ; cf. People v. Maldonado, 116 A.D.3d 980, 983 N.Y.S.2d 635 ).
DILLON, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.