Opinion
2022-01314 Ind. 19-470
03-02-2022
The People of the State of New York, respondent, v. Alfonso Nava Garcia, appellant.
Paul N. Weber, Jr., Cornwall, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Alexander J. H. Ochoa and Andrew R. Kass of counsel), for respondent.
Paul N. Weber, Jr., Cornwall, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Alexander J. H. Ochoa and Andrew R. Kass of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered December 16, 2019, convicting him of disseminating indecent material to minors in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18 N.Y.3d 257, 264). The County Court mischaracterized the nature of the right to appeal by stating that the defendant's conviction and sentence would be final (see People v Bisono, 36 N.Y.3d 1013, 1017-1018; People v Thomas, 34 N.Y.3d 545, 564-566), and the written waiver form did not clarify that appellate review remained available for select issues (see People v Thomas, 34 N.Y.3d at 566; People v Enriquez, 199 A.D.3d 830; People v Corley, 197 A.D.3d 1324; People v Brown, 195 A.D.3d 943). Thus, the purported waiver does not preclude appellate review of the issues raised by the defendant.
Contrary to the defendant's contention, the sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's contention that he received ineffective assistance of counsel during the plea negotiation process and sentencing 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 [alterations omitted], quoting People v Evans, 16 N.Y.3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel 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, and we decline to review the claim on this direct appeal (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109).
BRATHWAITE NELSON, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.