Opinion
2017–03599 S.C.I. No. 209/16
04-29-2020
The PEOPLE, etc., Respondent, v. Tiquan W. LEWIS, Appellant.
Salvatore C. Adamo, New York, NY, for appellant, and appellant pro se. Robert Tendy, District Attorney, Carmel, N.Y. (David M. Bishop and Nicholas LaStella of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant, and appellant pro se.
Robert Tendy, District Attorney, Carmel, N.Y. (David M. Bishop and Nicholas LaStella of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Putnam County (James F. Reitz, J.), rendered March 9, 2017, convicting him of criminal sale of a controlled substance in the third degree (three counts), 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 knowingly, voluntarily, and intelligently entered because his waiver of the right to appeal was invalid, is not preserved for appellate review since the defendant never moved to withdraw his plea prior to sentencing (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Harris, 169 A.D.3d 924, 92 N.Y.S.3d 667 ), and "the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea" ( People v. Fontanet, 126 A.D.3d 723, 723, 2 N.Y.S.3d 371 ; see People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ). In any event, this contention is without merit because the validity of a plea of guilty is not dependent upon the validity of a waiver of the right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843 ). Further, here, the record of the plea proceedings, which included both an oral and written waiver of the defendant's right to appeal, demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Orta, 169 A.D.3d 932, 92 N.Y.S.3d 672 ). Furthermore, the record demonstrates that the defendant understood that his right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). On the record presented, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally id. at 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Orta, 169 A.D.3d at 932–933, 92 N.Y.S.3d 672 ).
The defendant's contention raised in his main brief and his pro se supplemental brief 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 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 his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Morgan, 121 A.D.3d 1128, 1129, 994 N.Y.S.2d 315 ).
The defendant's remaining contentions raised in his pro se supplemental brief are without merit.
SCHEINKMAN, P.J., AUSTIN, HINDS–RADIX and WOOTEN, JJ., concur.