Opinion
2014–07389 Ind. No. 47/14
12-27-2017
The PEOPLE, etc., respondent, v. Siptah WILLIAMS, appellant.
Neal D. Futerfas, White Plains, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Neal D. Futerfas, White Plains, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
RUTH C. BALKIN, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered July 1, 2014, convicting him of criminal possession of a controlled substance in the fourth 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 involuntary because he had a defense is unpreserved for appellate review, since he did not move to withdraw his plea on this basis prior to sentencing (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Rovinsky, 135 A.D.3d 969, 970, 22 N.Y.S.3d 910 ; People v. Banner, 122 A.D.3d 641, 994 N.Y.S.2d 424 ). Contrary to the defendant's contention, the exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ) does not apply here because the defendant's allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Delarosa, 104 A.D.3d 956, 960 N.Y.S.2d 915 ; People v. Colston, 68 A.D.3d 1130, 892 N.Y.S.2d 145 ; People v. Nash, 38 A.D.3d 684, 832 N.Y.S.2d 593 ). In any event, the facts admitted in the allocution were sufficient to support the defendant's plea of guilty (see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Colston, 68 A.D.3d at 1131, 892 N.Y.S.2d 145 ; People v. Sanabria, 52 A.D.3d 743, 744, 861 N.Y.S.2d 359 ).
The defendant's contention that he was deprived of the effective 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 ). 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 ). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (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 ). Although the defendant made a postconviction motion to vacate the judgment pursuant to CPL 440.10, the issues raised in that motion are not properly before us, as he was denied leave to appeal from the order denying that motion (see People v. Dunaway, 134 A.D.3d 952, 954, 22 N.Y.S.3d 476 ; People v. Coleman, 125 A.D.3d 879, 881, 3 N.Y.S.3d 130 ; People v. DeLuca, 45 A.D.3d 777, 847 N.Y.S.2d 198 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., MILLER, DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.