Opinion
05-04-2016
The PEOPLE, etc., respondent, v. Herbert L. LEVERICH, appellant.
Salvatore C. Adamo, New York, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Salvatore C. Adamo, New York, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J., at plea; Forman, J., at sentencing), rendered September 11, 2014, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent because the County Court failed to advise him of the constitutional rights he was forfeiting upon his plea of guilty is unpreserved for appellate review, since he did not move to withdraw the plea (see People v. Sirico, 135 A.D.3d 19, 22, 18 N.Y.S.3d 430 ; People v. Isaiah S., 130 A.D.3d 1081, 13 N.Y.S.3d 840 ; People v. Bennett, 122 A.D.3d 871, 872, 996 N.Y.S.2d 369 ). In any event, the plea was knowingly, voluntarily, and intelligently made (see Brady v. United States, 397 U.S. 742, 747 n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747 ; People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).
The defendant's contention that he was deprived of his right to 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 ). 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 Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 ; People v. McDonald, 1 N.Y.3d 109, 114, 769 N.Y.S.2d 781, 802 N.E.2d 131 ; People v. Tomaselli, 7 N.Y.2d 350, 355, 197 N.Y.S.2d 697, 165 N.E.2d 551 ; People v. Johnson, 91 A.D.2d 782, 783, 458 N.Y.S.2d 83 ; cf. People v. Crump, 53 N.Y.2d 824, 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 ). 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. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., AUSTIN, ROMAN and DUFFY, JJ., concur.