Opinion
2019–09926 Ind. No. 1529/17
06-08-2022
The PEOPLE, etc., respondent, v. Mark SAVRANSKY, also known as Mark Savran, appellant.
Steven A. Feldman, Manhasset, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Cristin N. Connell of counsel; Matthew C. Frankel on the brief), for respondent.
Steven A. Feldman, Manhasset, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Cristin N. Connell of counsel; Matthew C. Frankel on the brief), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), rendered July 18, 2019, convicting him of grand larceny in the second degree (two counts) and scheme to defraud in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Shanks, 37 N.Y.3d 244, 253, 154 N.Y.S.3d 646, 176 N.E.3d 682 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Fahey, 200 A.D.3d 978, 978–979, 158 N.Y.S.3d 247 ; People v. Brown, 195 A.D.3d 943, 943, 146 N.Y.S.3d 514 ; People v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778 ; People v. Howard, 183 A.D.3d 640, 640, 121 N.Y.S.3d 622 ). Accordingly, the purported appeal waiver does not limit the scope of this Court's appellate review (see generally People v. Batista, 167 A.D.3d 69, 79, 86 N.Y.S.3d 492 ).
Contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ). The defendant's contention that his sentence violated constitutional prohibitions against cruel and unusual punishment (see U.S. Const Amend VIII ; NY Const, art I, § 5 ) is also without merit (see People v. Jones, 39 N.Y.2d 694, 697, 385 N.Y.S.2d 525, 350 N.E.2d 913 ; People v. Miller, 74 A.D.3d 1097, 1097, 903 N.Y.S.2d 131 ; People v. Clerge, 69 A.D.3d 955, 955, 893 N.Y.S.2d 607 ).
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 ). 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 remaining contentions are unpreserved for appellate review (see CPL 470.05[2] ), and we decline to review them in the exercise of our interest of justice jurisdiction (see generally People v. Genao, 145 A.D.3d 739, 740, 41 N.Y.S.3d 901 ).
BARROS, J.P., CHAMBERS, MILLER and DOWLING, JJ., concur.