Opinion
2013-04-10
The PEOPLE, etc., respondent, v. Devon BARRETT, appellant.
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald Berk of counsel; Matthew C. Frankel on the brief), for respondent.
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald Berk of counsel; Matthew C. Frankel on the brief), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ayres, J.), rendered April 26, 2011, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Kase, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, under the particular facts of this case, the defendant's purported waiver of his right to appeal was invalid ( see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172;People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Vasquez, 101 A.D.3d 1054, 956 N.Y.S.2d 171;People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627;People v. Remington, 90 A.D.3d 678, 679, 933 N.Y.S.2d 891;People v. Mayo, 77 A.D.3d 683, 684, 908 N.Y.S.2d 353).
However, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;People v. Stone, 91 A.D.3d 977, 977, 937 N.Y.S.2d 630). Moreover, the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;see People v. Stone, 91 A.D.3d at 977, 937 N.Y.S.2d 630;People v. Young, 88 A.D.3d 918, 918, 931 N.Y.S.2d 235). In any event, the plea allocution was sufficient since “the allocutionshows that the defendant understood the charges and made an intelligent decision to enter a plea” ( People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692).
Contrary to the defendant's contention, the Supreme Court did not fail to adequately set forth “its fact-findings, legal conclusions, and reasons for its determination” when it denied that branch of his omnibus motion which was to suppress his statements to law enforcement officials ( People v. Jeffreys, 284 A.D.2d 550, 550, 727 N.Y.S.2d 626;seeCPL 710.60[6] ). Furthermore, a review of the totality of the circumstances demonstrates that the defendant's statements to the police, which were given after he was informed of, and waived, his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), were voluntarily made ( seeCPL 60.45[1]; People v. Taylor, 98 A.D.3d 593, 593, 949 N.Y.S.2d 209,lv. granted20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 [Feb. 25, 2013];People v. Nimmons, 95 A.D.3d 1360, 1360, 945 N.Y.S.2d 358).
As the People correctly contend, to the extent that the defendant's claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty ( see People v. Opoku, 61 A.D.3d 705, 705, 876 N.Y.S.2d 493;People v. DeLuca, 45 A.D.3d 777, 777, 847 N.Y.S.2d 198). To the extent that the defendant is claiming that ineffective assistance of counsel rendered his plea involuntary, his contention 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 ( see People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386;People v. DeLuca, 45 A.D.3d at 777, 847 N.Y.S.2d 198). 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, to the extent that it has not been forfeited by his plea of guilty, 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, 806, 940 N.Y.S.2d 314;People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).
The Supreme Court providently exercised its discretion in denying the defendant's request for youthful offender treatment ( seeCPL 720.20[1]; People v. Santiago, 101 A.D.3d 1155, 1155, 955 N.Y.S.2d 886). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).