Opinion
2018–13567 Ind.No. 1574/16
10-07-2020
The PEOPLE, etc., respondent, v. Guillermo TORRES, appellant.
Del Atwell, East Hampton, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead N.Y. (Rosalind C. Gray and Guy Arcidiacono of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead N.Y. (Rosalind C. Gray and Guy Arcidiacono of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Richard Ambro, J.), rendered October 31, 2018, convicting him of criminal possession of a controlled substance in the second degree and attempted conspiracy in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's plea of guilty waived all nonjurisdictional defects in the indictment (see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 ). His contention that the indictment was defective because it was not signed by both the grand jury foreperson and an Assistant District Attorney, as required by CPL 200.50(8) and (9) alleges a nonjurisdictional defect waived by his plea of guilty (see People v. Quintana, 159 A.D.3d 1122, 1123, 71 N.Y.S.3d 752 ; People v. Pigford, 148 A.D.3d 1299, 1302, 48 N.Y.S.3d 837 ; People v. Louis, 140 A.D.3d 436, 436, 34 N.Y.S.3d 11 ). In any event, the record reveals that the indictment was duly signed in accordance with the statute (see CPL 200.50[8], [9] ).
The defendant was granted permission to proceed pro se, with standby counsel. The defendant's claim of ineffective 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 without merit.
RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.