Opinion
2012-07-18
The PEOPLE, etc., respondent, v. Calvin YOUNG, appellant.
Del Atwell, East Hampton, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), for respondent.
Del Atwell, East Hampton, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Hinrichs, J.), rendered February 28, 2011, convicting him of attempted criminal possession of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
At the defendant's plea allocution, he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222;People v. Lopez, 6 N.Y.3d 248, 255, 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;People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022). The fact that the defendant was advised of his right to appeal at the end of the sentencing proceeding did not vitiate his valid waiver of that right ( see People v. Moissett, 76 N.Y.2d 909, 912, 563 N.Y.S.2d 43, 564 N.E.2d 653;People v. Crews, 92 A.D.3d 795, 938 N.Y.S.2d 475;People v. Brown, 26 A.D.3d 340, 341, 807 N.Y.S.2d 882;People v. Manzullo, 14 A.D.3d 717, 789 N.Y.S.2d 246).
The defendant's valid waiver of his right to appeal precludes appellate review of his contentions that the sentence imposed was excessive and 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. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Seaberg, 74 N.Y.2d at 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022;People v. Watt, 82 A.D.3d 912, 918 N.Y.S.2d 347;People v. Hughes, 62 A.D.3d 1026, 878 N.Y.S.2d 911). To the extent that the defendant's claim of ineffective assistance of counsel does relate to the voluntariness of his plea, his claim 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, 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 as it relates to the voluntariness of his plea ( 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. 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;People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).