S.C.I. No. 14-00268, 2014-11645.

2017 NY Slip Op 03020


Appellate Division of the Supreme Court of New York, Second Department.

Attorney(s) appearing for the Case

Thomas T. Keating , Dobbs Ferry, NY, for appellant.

Anthony A. Scarpino, Jr. , District Attorney, White Plains, NY ( Laurie Sapakoff and Steven Bender of counsel), for respondent.

Before: Mark C. Dillon, J.P., Cheryl E. Chambers, Sandra L. Sgroi, Joseph J. Maltese, Betsy Barros, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Everett, J.), rendered December 1, 2014, 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.

Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v Seaberg, 74 N.Y.2d 1, 10; People v Lujan, 114 A.D.3d 963, 964), the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowing, voluntary, or intelligent, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see CPL 220.60[3]; People v Clarke, 93 N.Y.2d 904, 906; People v Lopez, 71 N.Y.2d 662, 665-666). In any event, the record demonstrates that the defendant's plea was knowingly, voluntarily, and intelligently entered.

The defendant's valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of the plea allocution (see People v Ovalle, 112 A.D.3d 971; People v Knapp, 108 A.D.3d 641, 642; People v Hardee, 84 A.D.3d 835).

The defendant's claim that he was illegally sentenced as a predicate violent felony offender survives his valid waiver of the right to appeal (see People v Helmus, 125 A.D.3d 884; People v DelCarpio, 101 A.D.3d 746, 746-747; People v Iliff, 96 A.D.3d 974, 975; People v Maglione, 305 A.D.2d 426). However, the defendant's contention that his prior conviction did not qualify as a predicate violent felony under applicable State law is unpreserved for appellate review (see CPL 470.05[2]). In any event, the defendant's prior conviction qualified as a predicate violent felony (see Penal Law § 70.04[1][b][i], [iv], [v]). Moreover, contrary to the defendant's contention, the record reveals that he was advised at the plea proceeding that he would be sentenced as a predicate violent felony offender.

The defendant's claim that he was deprived of the right to 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; see People v Evans, 16 N.Y.3d 571, 575 n 2). 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 (see People v Granger, 122 A.D.3d 940, 942; cf. People v Crump, 53 N.Y.2d 824; People v Brown, 45 N.Y.2d 852). 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; People v Maxwell, 89 AD3d at 1109).



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