Opinion
2014-02-5
The PEOPLE, etc., respondent, v. William TARRANT, appellant.
Michael G. Paul, New City, N.Y., for appellant. Adam B. Levy, District Attorney, Carmel, N.Y. (Heather M. Abissi of counsel), for respondent.
Michael G. Paul, New City, N.Y., for appellant. Adam B. Levy, District Attorney, Carmel, N.Y. (Heather M. Abissi of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Putnam County (Rooney, J.), rendered September 19, 2012, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made is unpreserved for appellate review, since he did not move to withdraw his plea prior to the imposition of sentence ( see CPL 220.60[3]; 470.05[2]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Cohen, 100 A.D.3d 919, 953 N.Y.S.2d 900). In any event, the record reveals that the defendant's plea was entered knowingly, voluntarily, and intelligently ( see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).
By pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea bargaining process and sentence ( see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669; People v. Moshier, 110 A.D.3d 832, 833, 972 N.Y.S.2d 675; People v. Patterson, 106 A.D.3d 757, 964 N.Y.S.2d 233). Furthermore, the defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea ( see People v. Young, 97 A.D.3d 771, 948 N.Y.S.2d 124; People v. Wright, 95 A.D.3d 1046, 1047, 943 N.Y.S.2d 766; People v. Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231). The defendant's claim of ineffective assistance of counsel with respect to the plea bargaining process 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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457, cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). 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 ( cf. People v. Crump, 53 N.Y.2d 824, 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). Since the defendant's claim of ineffective assistance 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 ( see People v. Taylor, 98 A.D.3d 593, 594, 949 N.Y.S.2d 209; 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).
The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive ( see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182). RIVERA, J.P., DICKERSON, COHEN and HINDS–RADIX, JJ., concur.