Opinion
2017–04978 Ind.No. 141/16
06-26-2019
The PEOPLE, etc., Respondent, v. Richard R. GREEN, 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.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered April 10, 2017, convicting him of operating a motor vehicle while under the influence of alcohol, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record of the plea proceeding establishes that the defendant validly waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Batista, 167 A.D.3d 69, 73, 86 N.Y.S.3d 492 ). The colloquy between the County Court and the defendant demonstrated the defendant's understanding of the distinction between the right to appeal and other rights he was giving up by virtue of the plea, as well as the consequences of the waiver (see People v. Batista, 167 A.D.3d at 74, 86 N.Y.S.3d 492 ). The record demonstrates that the defendant understood the nature of his right to appeal and that he knowingly, voluntarily, and intelligently waived that right (see People v. Batista, 167 A.D.3d at 74, 86 N.Y.S.3d 492 ).
The defendant's contention that his plea was not knowing, intelligent, and voluntary is not barred by his valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Mendoza, 153 A.D.3d 1364, 1365, 60 N.Y.S.3d 495 ). However, the defendant failed to preserve this contention for appellate review since he failed to move to withdraw his plea (see People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Perez, 160 A.D.3d 901, 901, 75 N.Y.S.3d 95 ). The exception to the preservation requirement does not apply here because the defendant's plea allocution does not "clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea" ( People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Griffin, 167 A.D.3d 934, 934, 88 N.Y.S.3d 348 ; People v. Mendoza, 153 A.D.3d at 1365, 60 N.Y.S.3d 495 ). In any event, the record indicates that the defendant entered his plea of guilty knowingly, voluntarily, and intelligently (see People v. Ward, 126 A.D.3d 730, 730, 5 N.Y.S.3d 468 ; People v. Kelly, 121 A.D.3d 713, 713, 993 N.Y.S.2d 169 ; People v. M'Lady, 59 A.D.3d 568, 568, 873 N.Y.S.2d 331 ).
The defendant's valid waiver of the right to appeal does not preclude review of his claim of ineffective assistance of counsel since he claims that ineffective assistance of counsel affected the voluntariness of the plea (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 ). The defendant's contention that he was deprived of the effective 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 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's valid waiver of the right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Gipson, 170 A.D.3d 1037, 94 N.Y.S.3d 454 ).
LEVENTHAL, J.P., ROMAN, LASALLE and CHRISTOPHER, JJ., concur.