Opinion
647 KA 18-02409
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Denzel K. LEWIS, Defendant-Appellant.
CONNIE M. LOZINSKY, NIAGARA FALLS, FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (CARRINGTON M. CROSSLEY OF COUNSEL), FOR RESPONDENT.
CONNIE M. LOZINSKY, NIAGARA FALLS, FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (CARRINGTON M. CROSSLEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ), defendant contends that his waiver of the right to appeal is invalid for several reasons and that his sentence is unduly harsh and severe. Defendant initially contends that his waiver of the right to appeal is invalid because he did not understand that the maximum sentence could be imposed. We reject that contention. Supreme Court informed defendant of the sentencing range, including the maximum sentence, and we conclude that defendant "acknowledged that he understood the bargained-for plea agreement and that no promises or commitments had been made with respect to sentencing" ( People v. Chandler , 214 A.D.2d 1027, 1027, 626 N.Y.S.2d 893 [4th Dept. 1995], lv denied 86 N.Y.2d 792, 632 N.Y.S.2d 505, 656 N.E.2d 604 [1995] ). Defendant further contends that his waiver of the right to appeal is invalid due to the lack of a specific sentence promise. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid on that basis and therefore does not preclude our review of his challenge to the severity of his sentence (cf. People v. Allen , 174 A.D.3d 1456, 1456, 108 N.Y.S.3d 243 [4th Dept. 2019], lv denied 34 N.Y.3d 978, 113 N.Y.S.3d 663, 137 N.E.3d 33 [2019] ; People v. Plass , 150 A.D.3d 1558, 1559, 56 N.Y.S.3d 581 [3d Dept. 2017], lv denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ; see generally People v. Thomas , 34 N.Y.3d 545, 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ), we conclude that the sentence is not unduly harsh or severe.
Finally, defendant contends that he was denied effective assistance of counsel at sentencing. Even assuming, arguendo, that defendant's contention survives his guilty plea (see People v. Glowacki , 159 A.D.3d 1585, 1586, 70 N.Y.S.3d 441 [4th Dept. 2018], lv denied 31 N.Y.3d 1117, 81 N.Y.S.3d 377, 106 N.E.3d 760 [2018] ; People v. McFarley , 144 A.D.3d 1521, 1522, 40 N.Y.S.3d 853 [4th Dept. 2016] ), that contention is based in part on matters outside the record. We conclude that because "the ‘claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed] claim in its entirety ’ " ( People v. Wilson[Appeal No. 2] , 162 A.D.3d 1591, 1592, 78 N.Y.S.3d 819 [4th Dept. 2018] ; see People v. Johnson , 195 A.D.3d 1420, 1421-1422, 150 N.Y.S.3d 424 [4th Dept. 2021], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 336, 180 N.E.3d 500 [2021] ; see generally People v. Maffei , 35 N.Y.3d 264, 269-270, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ).