Opinion
2017–06310 Ind.No. 15–00723
11-13-2019
The PEOPLE, etc., Respondent, v. Terrance TALLEGRAND, Appellant.
Joseph J. Artrip, Cornwall, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
Joseph J. Artrip, Cornwall, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty (see People v. Ryerson, 172 A.D.3d 909, 909, 98 N.Y.S.3d 435 ; People v. Santeramo, 153 A.D.3d 1286, 1286–1287, 61 N.Y.S.3d 295 ). Moreover, the County Court failed to provide the defendant with an adequate explanation of the nature of the right to appeal and the consequences of waiving that right (cf. People v. Brown, 122 A.D.3d 133, 144, 992 N.Y.S.2d 297 ). Further, although the record on appeal reflects that the defendant signed a written appeal waiver form, the transcript of the plea proceeding shows that the court did not ascertain on the record whether the defendant had read the written waiver or whether he was even aware of its contents (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Santeramo, 153 A.D.3d at 1287, 61 N.Y.S.3d 295 ; People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Accordingly, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and thus, the waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ). Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant contends that counsel who represented him during the plea proceedings was ineffective for failing to move for a competency examination pursuant to CPL 730.30. By pleading guilty, the defendant forfeited appellate review of any claims of ineffective assistance of counsel that do not directly involve the plea negotiation process and sentence (see People v. McTerrell, 174 A.D.3d 648, 101 N.Y.S.3d 868 ; People v. Worthy, 138 A.D.3d 1042, 1042, 30 N.Y.S.3d 260 ). To the extent that the defendant's contention relates to alleged ineffective assistance that directly involves the plea negotiation process and sentence, it 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, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ). To the extent that the defendant contends that, due to the ineffective assistance of counsel, his plea was not knowing, intelligent, and voluntary, that contention would survive even a valid waiver of the right to appeal (see People v. Elcine, 43 A.D.3d 1176, 1177, 843 N.Y.S.2d 343 ; People v. Mabry, 27 A.D.3d 835, 810 N.Y.S.2d 577 ). However, the defendant's contention is without merit, as the record demonstrates that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v. Marcinak, 69 A.D.3d 654, 655, 893 N.Y.S.2d 171 ). The defendant's remaining contention is without merit.
CHAMBERS, J.P., MALTESE, LASALLE and CHRISTOPHER, JJ., concur.