Opinion
2017–07096 2017–07097 Ind. Nos. 16–00570, 16–01050
11-20-2019
The PEOPLE, etc., Respondent, v. Edwin PAGAN, Appellant.
Carl D. Birman, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Jordan K. Hummel of counsel), for respondent.
Carl D. Birman, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Jordan K. Hummel of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the Supreme Court, Westchester County (Barry E. Warhit, J.), both rendered June 29, 2017, convicting him of criminal possession of a controlled substance in the third degree under Indictment No. 16–00570, and attempted assault in the first degree under Indictment No. 16–01050, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
Initially, the defendant's waiver of his right to appeal was invalid because the Supreme Court failed to adequately explain the general nature of the right to appeal and the appellate rights he was waiving (see People v. Moncrieft, 168 A.D.3d 982, 984, 92 N.Y.S.3d 335 ; People v. Fortier, 130 A.D.3d 642, 643, 12 N.Y.S.3d 283 ). Nevertheless, the defendant's contention that his plea of guilty was not knowingly, intelligently, and voluntarily entered to the extent that he purportedly agreed to forfeit certain cash is unpreserved for appellate review because the defendant failed to move to withdraw the plea prior to sentencing or otherwise raise the issue before the Supreme Court (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Harris, 169 A.D.3d 924, 92 N.Y.S.3d 667 ; People v. Saliani, 163 A.D.3d 854, 854, 80 N.Y.S.3d 471 ; People v. Hutter, 154 A.D.3d 776, 776, 63 N.Y.S.3d 391 ). In addition, "the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea" ( People v. Fontanet, 126 A.D.3d 723, 723, 2 N.Y.S.3d 371 ; see People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, the People's request that the defendant forfeit the subject cash was a collateral, not a direct, consequence of his pleas of guilty, and the Supreme Court generally has no obligation to apprise the defendant of the collateral consequences of the plea (see People v. Sharp, 148 A.D.3d 1058, 1059, 49 N.Y.S.3d 749 ). Moreover, the record shows that the defendant was apprised that the subject forfeitures were part of the plea agreement at the time of the pleas and that he agreed to forfeit the cash as part of the plea agreement (see CPL 220.50[6] ; People v. Sharp, 148 A.D.3d at 1059, 49 N.Y.S.3d 749 ).
The defendant's contention that he was deprived of the effective assistance of counsel during the plea proceedings 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, 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 ). 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, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.