Opinion
2014-06-24
The PEOPLE of the State of New York, Respondent, v. David RIVERA, Defendant–Appellant.
Marianne Karas, Thornwood, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.
Marianne Karas, Thornwood, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January 24, 2012, convicting defendant, upon his plea of guilty, of conspiracy in the second degree and three counts of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 5 1/2 to 16 1/2 years, to be served consecutively to three concurrent terms of 4 years, unanimously affirmed.
Defendant's unpreserved challenges to the validity of his plea do not come within the narrow exception to the preservation requirement ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), and we decline to review them in the interest of justice. As an alternative holding, we find that the plea was knowing, intelligent and voluntary. The charges to which defendant pleaded guilty, and the sentencing consequences, were adequately set forth at the time of the plea, and defendant's complaint about the sequence in which the court conducted the allocution is without merit ( see Matter of Leon T., 23 A.D.3d 256, 804 N.Y.S.2d 79 [1st Dept.2005] ).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they largely involve matters not reflected in, or fully explained by, the record ( see e.g. People v. Harmon, 50 A.D.3d 318, 854 N.Y.S.2d 714 [1st Dept.2008],lv. denied10 N.Y.3d 935, 862 N.Y.S.2d 341, 892 N.E.2d 407 [2008];People v. Rice, 18 A.D.3d 351, 795 N.Y.S.2d 226 [1st Dept.2005],lv. denied5 N.Y.3d 768, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards in connection with his guilty plea ( see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995];Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984];see also Lafler v. Cooper, 566 U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 [2012] ). TOM, J.P., MOSKOWITZ, MANZANET–DANIELS, FEINMAN, GISCHE, JJ., concur.