Opinion
01-25-2017
The PEOPLE, etc., respondent, v. Lazaro AYALA, appellant.
Michele Marte–Indzonka, Newburgh, N.Y., for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
Michele Marte–Indzonka, Newburgh, N.Y., for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.), rendered November 10, 2015, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid. The record does not sufficiently demonstrate that the defendant understood the concept of the right to appeal and fully appreciated the consequences of waiving that right (see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ). Among other things, the County Court did not clearly ascertain on the record that defense counsel discussed the right to appeal with the defendant (cf. People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). We note that the County Court relied heavily upon the written appeal waiver form executed by the defendant. On this appeal, the People also rely heavily on the written waiver in support of their argument that the purported appeal waiver was valid. However, the written waiver is not in the record and the People did not provide it. Under all the circumstances, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Harris, 142 A.D.3d 557, 557, 36 N.Y.S.3d 211 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; cf. People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Page, 138 A.D.3d 1313, 1313–1314, 30 N.Y.S.3d 374 ; People v. Pacheco, 138 A.D.3d 1035, 1036, 28 N.Y.S.3d 627 ). Thus, the purported waiver does not preclude review of any of the defendant's claims.
The defendant's claim of ineffective assistance of counsel is based, in part, upon 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 (see People v. Barber, 133 A.D.3d 868, 872, 22 N.Y.S.3d 63 ; People v. Young, 97 A.D.3d 771, 948 N.Y.S.2d 124 ). 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. Barber, 133 A.D.3d at 872, 22 N.Y.S.3d 63 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).