Opinion
2017–12507 Ind.No. 31/17
09-02-2020
The PEOPLE, etc., Respondent, v. Matthew D. WALDER, Appellant.
Stephen N. Preziosi, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
Stephen N. Preziosi, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid because the County Court's 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. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ; see also People v. Thomas, 34 N.Y.3d 545, 560–564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ), and the People do not rely on any written waiver of appeal to cure the deficiencies in the court's colloquy.
The defendant's contentions that he was denied the effective assistance of counsel and that the presentence investigation report prepared by the Department of Probation contained factual errors involve matters outside the record on appeal (see People v. Shabazz, 174 A.D.3d 824, 825, 105 N.Y.S.3d 511 ; People v. Stevens, 162 A.D.3d 1077, 1078, 75 N.Y.S.3d 539 ). The appropriate vehicle for asserting a claim grounded in allegations referring to facts outside the record is a motion pursuant to CPL 440.10, where matters dehors the record may be considered (see People v. Avilacruz, 172 A.D.3d 1398, 1399, 99 N.Y.S.3d 656 ; People v. Rohlehr, 87 A.D.3d 603, 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 ).
The defendant's remaining contention is without merit.
AUSTIN, J.P., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.