People v. Sanders

Full title: The People of the State of New York, respondent, v. Marlon Sanders…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Mar 8, 2017

2017 N.Y. Slip Op. 1719 (N.Y. App. Div. 2017)

Opinion

2010-10767

03-08-2017

The People of the State of New York, respondent, v. Marlon Sanders, appellant.

Lynn W. L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.

WILLIAM F. MASTRO, J.P.

CHERYL E. CHAMBERS JOSEPH J. MALTESE COLLEEN D. DUFFY, JJ. (Ind. No. 399/08)

Lynn W. L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered August 25, 2010, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim of ineffective assistance of counsel is based, in part, upon 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 AD3d 1108, 1109). 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 (see People v Marryshow, 135 AD3d 964, 965; cf. People v Crump, 53 NY2d 824, 825; People v Brown, 45 NY2d 852). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's claim in its entirety (see People v Marryshow, 135 AD3d at 965; People v Maxwell, 89 AD3d at 1109; cf. People v Maldonado, 116 AD3d 980).

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v Lopez, 6 NY3d 248, 256; People v Palladino, 140 AD3d 1194, 1195; People v Edmunson, 109 AD3d 621, 622; People v Ropiza, 100 AD3d 935, 936).

MASTRO, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court