Opinion
2014-02198 Ind. No. 13-00267.
12-23-2015
The PEOPLE, etc., respondent, v. Jamel UPSON, appellant.
Christine Moccia, Chappaqua, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer and Laurie Sapakoff of counsel), for respondent.
Christine Moccia, Chappaqua, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer and Laurie Sapakoff of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered January 8, 2014, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, 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, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel except to the extent that the 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). Insofar as the defendant contends that defense counsel's conduct affected the voluntariness of his plea, the claim 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. Borges, 130 A.D.3d 1057, 1058, 15 N.Y.S.3d 378). 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 as it relates to the voluntariness of his plea (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). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (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).
Moreover, the record reflects that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Harris, 61 N.Y.2d 9, 16–17, 471 N.Y.S.2d 61, 459 N.E.2d 170). The defendant's postplea assertions regarding his innocence contradicted the admissions made under oath at his plea allocution, and were insufficient to warrant vacatur of his plea or a hearing (see People v. Martinez, 129 A.D.3d 1106, 1107, 11 N.Y.S.3d 686; People v. Dazzo, 92 A.D.3d 796, 938 N.Y.S.2d 446). Thus, the Supreme Court properly denied, without a hearing, the defendant's motion to withdraw his plea of guilty (see CPL 220.603 ).