Opinion
2014-02-19
The PEOPLE, etc., respondent, v. Elijahwon McNAIR, appellant.
Del Atwell, Albany, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.
Del Atwell, Albany, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered August 25, 2011, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's claims of ineffective assistance of counsel cannot be reviewed on direct appeal because they are based on matter outside the record on appeal ( see People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919;People v. Miller, 68 A.D.3d 1135, 1135, 892 N.Y.S.2d 152). “ ‘The appropriate vehicle ... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the ... record is [a motion] pursuant to CPL 440.10, where matters dehors the record may be considered’ ” ( People v. Rohlehr, 87 A.D.3d at 604, 927 N.Y.S.2d 919, quoting People v. Miller, 68 A.D.3d at 1135, 892 N.Y.S.2d 152).
The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive ( see 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, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Gonzalez, 109 A.D.3d 1003, 971 N.Y.S.2d 479;People v. Arias, 100 A.D.3d 914, 953 N.Y.S.2d 892). DILLON, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.