Opinion
11-23-2016
The PEOPLE, etc., respondent, v. Eli ROBINSON, appellant.
Del Atwell, East Hampton, N.Y., for appellant. James A. McCarty, Acting District Attorney, White Plains, N.Y. (Hae Jin Liu and Jennifer Spencer of counsel), for respondent.
Del Atwell, East Hampton, N.Y., for appellant.
James A. McCarty, Acting District Attorney, White Plains, N.Y. (Hae Jin Liu and Jennifer Spencer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J., at plea; Warhit, J., at sentence), rendered January 15, 2015, convicting him of a criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he 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. Lopez, 6 N.Y.3d 248, 254–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 137–145, 992 N.Y.S.2d 297 ). 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. Clarke, 124 A.D.3d 791, 998 N.Y.S.2d 667 ; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220 ; People v. Crews, 92 A.D.3d 795, 795–796, 938 N.Y.S.2d 475 ).Moreover, the defendant's valid appeal waiver precludes appellate review of his claim that he was deprived of the effective assistance of counsel, except to the extent that counsel's alleged ineffective assistance affected the voluntariness of his plea (see People v. Young, 97 A.D.3d 771, 948 N.Y.S.2d 124 ; People v. Watt, 82 A.D.3d 912, 918 N.Y.S.2d 347 ). The defendant's contention that counsel's alleged ineffective assistance affected the voluntariness of his plea 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 (see People v. Ross, 113 A.D.3d 877, 878, 979 N.Y.S.2d 160 ; People v. Young, 97 A.D.3d at 771, 948 N.Y.S.2d 124 ; People v. McClurkin, 96 A.D.3d 784, 785–786, 945 N.Y.S.2d 718 ). In this case, it is not evident from the matter appearing 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 ). 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 (see People v. Ross, 113 A.D.3d at 878, 979 N.Y.S.2d 160 ; People v. Young, 97 A.D.3d at 771, 948 N.Y.S.2d 124 ; People v. McClurkin, 96 A.D.3d at 785–786, 945 N.Y.S.2d 718 ).
LEVENTHAL, J.P., COHEN, MILLER and LaSALLE, JJ., concur.