Opinion
2016–03003 2016–03004 Ind. Nos. 1056/15, 1267/15
10-31-2018
The PEOPLE, etc., Respondent, v. Darlene GOTT, Appellant.
Del Atwell, East Hampton, NY, for appellant, and appellant pro se. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant, and appellant pro se.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from two judgments of the County Court, Suffolk County (Martin Efman, J.), both rendered March 9, 2016, convicting her of burglary in the second degree under Indictment No. 1056/15, and attempted assault in the second degree and driving while intoxicated, as a misdemeanor, in violation of Vehicle and Traffic Law § 1192(3), under Indictment No. 1267/15, upon her pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
Contrary to the defendant's contention, the record demonstrates that she pleaded guilty knowingly, intelligently, and voluntarily (see People v. Fiumefreddo, 82 N.Y.2d 536, 546, 605 N.Y.S.2d 671, 626 N.E.2d 646 ). The defendant's claim that the voluntariness of her pleas of guilty was impaired by mental illness or the side effects of psychiatric medication is unsupported by the record (see People v. Banner, 122 A.D.3d 641, 642, 994 N.Y.S.2d 424 ; People v. Brooks, 89 A.D.3d 747, 747, 931 N.Y.S.2d 908 ; People v. M'Lady, 59 A.D.3d 568, 568, 873 N.Y.S.2d 331 ). Rather, the record demonstrates that the defendant understood the charges against her and the pleas of guilty were " ‘voluntarily made with the advice of counsel following an appraisal of all the relevant factors’ " ( People v. Haffiz, 19 N.Y.3d 883, 884, 951 N.Y.S.2d 690, 976 N.E.2d 216, quoting People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 ; see People v. Smith, 148 A.D.3d 939, 940, 49 N.Y.S.3d 501 ; People v. McGuire, 122 A.D.3d 947, 947, 997 N.Y.S.2d 468 ). Accordingly, we agree with the County Court's determination denying, without a hearing, the defendant's motion to withdraw her pleas of guilty (see People v. Fiumefreddo, 82 N.Y.2d at 546, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Smith, 148 A.D.3d at 940, 49 N.Y.S.3d 501 ; People v. McGuire, 122 A.D.3d at 947–948, 997 N.Y.S.2d 468 ).
By pleading guilty, the defendant forfeited review of her CPL 30.30 claim that she was denied a speedy trial (see People v. Grafton, 153 A.D.3d 933, 933, 60 N.Y.S.3d 436 ; People v. Kidd, 100 A.D.3d 779, 779, 953 N.Y.S.2d 863 ). A claim that the defendant was denied her constitutional right to a speedy trial would have survived entry of a plea of guilty, but the defendant did not make a motion to dismiss the indictment on constitutional grounds. "[T]here having been no denial of a request for such relief, as a matter of appellate procedure ... there was no ruling of the trial court in this action to be reviewed" on appeal ( People v. Jordan, 62 N.Y.2d 825, 826, 477 N.Y.S.2d 605, 466 N.E.2d 145 ; see People v. Davison, 92 A.D.3d 691, 692, 937 N.Y.S.2d 864 ).
The defendant's waiver of the right to appeal precludes review of her claim of ineffective assistance of counsel, except to the extent that she claims that ineffective assistance of counsel may have affected the voluntariness of the pleas (see People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ; People v. Perazzo, 65 A.D.3d 1058, 1059, 886 N.Y.S.2d 43 ). "Moreover, ‘[b]y pleading guilty, the defendant forfeited ... h[er] claims of ineffective assistance of counsel which do not directly involve the bargaining process’ " ( People v. Perazzo, 65 A.D.3d at 1059, 886 N.Y.S.2d 43 ). To the extent that the defendant contends that counsel's conduct affected the voluntariness of the pleas or involved the plea bargaining process, her 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 ). 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. Spencer, 149 A.D.3d 983, 984, 52 N.Y.S.3d 430 ; 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 ). 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 defendant's claim in its entirety (see People v. Spencer, 149 A.D.3d at 983, 52 N.Y.S.3d 430 ; 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 ).
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.