Opinion
2013-09531, Ind. No. 1488/12.
04-20-2016
The PEOPLE, etc., respondent, v. Michael J. WORTHY, appellant.
Jillian S. Harrington, Staten Island, N.Y., for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and Rebecca L. Abensur of counsel), for respondent.
Jillian S. Harrington, Staten Island, N.Y., for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and Rebecca L. Abensur of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, CHERYL E. CHAMBERS, and THOMAS A. DICKERSON, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Quinn, J.), rendered September 4, 2013, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
By pleading guilty, the defendant forfeited appellate review of his claim of ineffective assistance of counsel that did not directly involve the plea negotiation process (see People v.
Zeigler, 128 A.D.3d 737, 738, 7 N.Y.S.3d 600 ; People v. McGuire, 122 A.D.3d 947, 948, 997 N.Y.S.2d 468 ). Furthermore, the defendant's 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. Tarrant, 114 A.D.3d 710, 711, 979 N.Y.S.2d 827 ; People v. Gomez, 114 A.D.3d 701, 702, 979 N.Y.S.2d 828 ). To the extent that the defendant contends that his counsel's conduct affected the voluntariness of his plea (see People v. Devino, 110 A.D.3d 1146, 1147, 973 N.Y.S.2d 372 ), his contention is based, in part, on matter appearing on the record and, in part, upon matter appearing 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 ). 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. Haywood, 122 A.D.3d 769, 770, 996 N.Y.S.2d 137 ; People v. Crawford, 106 A.D.3d 832, 834, 964 N.Y.S.2d 636 ).
The defendant's claim that his constitutional right to a speedy trial was violated survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Franco, 104 A.D.3d 790, 791, 960 N.Y.S.2d 507 ; People v. Grandberry, 223 A.D.2d 723, 637 N.Y.S.2d 203 ). However, since the issue is raised for the first time on appeal, the defendant's contention is unpreserved for appellate review (see People v. Jordan, 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145 ; People v. Card, 107 A.D.3d 820, 968 N.Y.S.2d 803 ; People v. Davison, 92 A.D.3d 691, 692, 937 N.Y.S.2d 864 ; People v. Sease, 305 A.D.2d 700, 701, 759 N.Y.S.2d 695 ). In any event, review of this constitutional issue is precluded by the lack of an adequate record, which was the defendant's burden to provide (see People v. Card, 107 A.D.3d at 820, 968 N.Y.S.2d 803 ; People v. Smith, 48 A.D.3d 1095, 1096, 849 N.Y.S.2d 851 ; People v. James, 188 A.D.2d 296, 296, 590 N.Y.S.2d 722 ).