Opinion
2020–02481 S.C.I. No. 305/18
12-01-2021
The PEOPLE, etc., respondent, v. James STEWART, appellant.
Joseph F. DeFelice, Kew Gardens, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, NY (Judith R. Sternberg and Madeline Collins of counsel), for respondent.
Joseph F. DeFelice, Kew Gardens, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, NY (Judith R. Sternberg and Madeline Collins of counsel), for respondent.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (David P. Sullivan, J.), rendered February 11, 2020, convicting him of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid because the Supreme Court's oral colloquy mischaracterized the appellate rights waived as encompassing a bar to filing an appellate brief and the loss of attendant rights to counsel and poor person relief (see People v. Kaye, 190 A.D.3d 767, 767–768, 135 N.Y.S.3d 854 ). Nevertheless, the defendant's contention that he was denied due process because the court imposed an enhanced sentence without holding a sufficient inquiry as to whether the defendant violated his cooperation agreement is unpreserved for appellate review, and we decline to reach the contention in the exercise of our interest of justice jurisdiction (see People v. Edmondson, 191 A.D.3d 1015, 1016, 142 N.Y.S.3d 198 ; People v. Mateo, 166 A.D.3d 1246, 87 N.Y.S.3d 736 ).
The defendant's claim of ineffective assistance of counsel cannot be reviewed on direct appeal because it is based on matter outside the record on appeal (see People v. Walters, 183 A.D.3d 765, 766, 121 N.Y.S.3d 882 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ). The appropriate vehicle for asserting a claim of ineffective assistance of counsel grounded in allegations referring to facts outside the record is a motion pursuant to CPL 440.10, where matter dehors the record may be considered (see People v. Walters, 183 A.D.3d at 766, 121 N.Y.S.3d 882 ; People v. Rohlehr, 87 A.D.3d at 604, 927 N.Y.S.2d 919 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
AUSTIN, J.P., MILLER, WOOTEN and ZAYAS, JJ., concur.