Opinion
16505 1453/13.
12-29-2015
The PEOPLE of the State of New York, Respondent, v. Davon POWELL, Defendant–Appellant.
Marianne Karas, Thornwood, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Marianne Karas, Thornwood, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 2, 2013, as amended September 30, 2013, convicting defendant, upon his plea of guilty, of conspiracy in the second degree, and sentencing him to a term of 6 to 18 years, unanimously affirmed.
The record does not reflect that defendant knowingly and voluntarily waived his appellate rights (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 2011; see People v. Seaberg, 74 N.Y.2d 1, 111, 543 N.Y.S.2d 968, 541 N.E.2d 1022 1989 ). Notwithstanding, we do not reach defendant's claim that his guilty plea was invalid because it was unpreserved. Defendant did not make a postallocution motion to either withdraw his plea or to set aside the judgment of conviction pursuant to CPL 440.10, (see People v. Conceicao, 26 N.Y.3d 375, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2015 N.Y. Slip Op. 08615; see People v. Jackson, 123 A.D.3d 634, 999 N.Y.S.2d 73 1st Dept.2014, lv. denied 25 N.Y.3d 1202, 16 N.Y.S.3d 525, 37 N.E.3d 1168 2015 ), and we decline to review it in the interest of justice. Unlike the situation in People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 (2013), defendant had the opportunity to move to withdraw his plea or otherwise raise the issue, and the alleged deficiency did not rise to the level of a mode of proceedings error. As an alternative holding, we find that the record as a whole establishes the voluntariness of the plea (see Conceicao, 26 N.Y.3d 375, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2015 N.Y. Slip Op. 08615, 11/21, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346; see also People v. Harris, 61 N.Y.2d 9, 16–19, 471 N.Y.S.2d 61, 459 N.E.2d 170 1983 ).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 1988; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 1982 ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 1998; People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 1995 ) Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).