Opinion
10-19-2016
The PEOPLE, etc., respondent, v. Levy G. LASSITER, appellant.
Salvatore C. Adamo, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Appeal by the defendant from an amended judgment of the County Court, Dutchess County (Greller, J.), rendered August 20, 2014, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a controlled substance in the third degree.
ORDERED that the amended judgment is affirmed.
The defendant's contention that his plea of guilty was not voluntary is unpreserved for appellate review, since he failed to move to withdraw his guilty plea (see People v. Pryor, 11 A.D.3d 565, 782 N.Y.S.2d 803 ). In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).
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. Rosado, 134 A.D.3d 1133, 22 N.Y.S.3d 235 ). 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. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 ; People v. Hernandez, 125 A.D.3d 885, 886–887, 4 N.Y.S.3d 108 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ). 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. Renaud, 137 A.D.3d 818, 821, 27 N.Y.S.3d 578 ; People v. Addison, 107 A.D.3d 730, 732, 966 N.Y.S.2d 217 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., DICKERSON, MILLER and CONNOLLY, JJ., concur.