Opinion
03-08-2017
The PEOPLE, etc., respondent, v. Marlon SANDERS, appellant.
Lynn W.L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered August 25, 2010, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's claim of ineffective assistance of counsel is based, in part, upon 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 ). 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 People v. Marryshow, 135 A.D.3d 964, 965, 24 N.Y.S.3d 170 ; 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, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's claim in its entirety (see People v. Marryshow, 135 A.D.3d at 965, 24 N.Y.S.3d 170 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ; cf. People v. Maldonado, 116 A.D.3d 980, 983 N.Y.S.2d 635 ).
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 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Palladino, 140 A.D.3d 1194, 1195, 33 N.Y.S.3d 469 ; People v. Edmunson, 109 A.D.3d 621, 622, 970 N.Y.S.2d 635 ; People v. Ropiza, 100 A.D.3d 935, 936, 954 N.Y.S.2d 188 ).
MASTRO, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.