Opinion
01-21-2015
The PEOPLE, etc., respondent, v. Jermal LINCOLN, appellant.
John P. Savoca, Yorktown Heights, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
John P. Savoca, Yorktown Heights, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered June 11, 2013, convicting him of criminal possession of a weapon in the third degree and reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's valid waiver of his right to appeal (see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ) precludes review of his challenge to the factual sufficiency of the plea allocution (see People v. Ovalle, 112 A.D.3d 971, 977 N.Y.S.2d 401 ; People v. Knapp, 108 A.D.3d 641, 642, 968 N.Y.S.2d 381 ; People v. Hardee, 84 A.D.3d 835, 922 N.Y.S.2d 785 ).
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 ). 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 (cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). 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. 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 ).
MASTRO, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.