Opinion
2014–11443 Ind. No. 14–00197
11-29-2017
The PEOPLE, etc., respondent, v. Angel MARTINEZ, appellant.
Del Atwell, East Hampton, NY, for appellant, and appellant pro se. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jennifer Spencer and Steven A. Bender of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jennifer Spencer and Steven A. Bender of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered October 28, 2014, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Jessamy, 137 A.D.3d 1056, 1056, 28 N.Y.S.3d 376 ). The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the factual sufficiency of the plea allocution (see People v. Flowers, 152 A.D.3d 791, 56 N.Y.S.3d 470 ; People v. Smith, 146 A.D.3d 904, 904–905, 44 N.Y.S.3d 771 ).
The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Smith, 146 A.D.3d at 904–905, 44 N.Y.S.3d 771 ; People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ). However, contrary to the defendant's contention, his plea of guilty was not coerced by the County Court's remarks informing him of his possible sentence exposure were he to proceed to trial. Such remarks are informative rather than coercive (see People v. Foster, 99 A.D.3d 812, 812–813, 951 N.Y.S.2d 890 ; People v. Strong, 80 A.D.3d 717, 718, 914 N.Y.S.2d 679 ; People v. Bravo, 72 A.D.3d 697, 698, 899 N.Y.S.2d 280 ).
By pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea negotiation process and sentence (see People v. Fakhoury, 103 A.D.3d 664, 959 N.Y.S.2d 269 ; People v. Soria, 99 A.D.3d 1027, 1027–1028, 952 N.Y.S.2d 300 ). Moreover, the defendant's valid waiver of his right to appeal limits this Court's review to issues regarding the voluntariness of the plea (see People v. Flowers, 152 A.D.3d 791, 56 N.Y.S.3d 470 ; People v. Mejia, 112 A.D.3d 855, 856, 976 N.Y.S.2d 570 ). To the extent that the defendant's contentions are related to the voluntariness of the plea, his contentions involve a "mixed claim" of ineffective assistance that requires reference to matters outside the record ( 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 ; People v. Thorne, 116 A.D.3d 988, 983 N.Y.S.2d 861 ; People v. Fakhoury, 103 A.D.3d 664, 959 N.Y.S.2d 269 ). It is not evident based 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 ). Therefore, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Thorne, 116 A.D.3d 988, 983 N.Y.S.2d 861 ; People v. Fakhoury, 103 A.D.3d at 664, 959 N.Y.S.2d 269 ).The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Rankine, 153 A.D.3d 732, 57 N.Y.S.3d 890 ; People v. Flowers, 152 A.D.3d 791, 56 N.Y.S.3d 470 ).
The defendant's remaining contentions are without merit.
BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.