Opinion
2017–11779 2017–11780 Ind. Nos. 7835/16, 272/17
12-30-2020
The PEOPLE, etc., respondent, v. Michael WALKER, appellant.
Michael Walker, Napanoch, NY, appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, and Cindy Horowitz of counsel), for respondent.
Michael Walker, Napanoch, NY, appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, and Cindy Horowitz of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the Supreme Court, Kings County (Joanne Quinones, J.), both rendered August 30, 2017, convicting him of burglary in the third degree under Indictment No. 7835/16, and attempted robbery in the second degree under Indictment No. 272/17, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant's contention that his pleas of guilty were not knowing, voluntary, or intelligent because he is legally blind and was denied devices to accommodate his visual impairment is unpreserved for appellate review as the defendant failed to move to vacate his pleas prior to the imposition of the sentences or otherwise raise the issue before the Supreme Court (see CPL 470.05[2] ; People v. Thomas, 150 A.D.3d 770, 770–771, 53 N.Y.S.3d 195 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ). In any event, the defendant's contention cannot be reviewed on direct appeal as it is based on matter dehors the record (see People v. Thomas, 150 A.D.3d at 771, 53 N.Y.S.3d 195 ; People v. Peterson, 95 A.D.3d 1143, 943 N.Y.S.2d 781 ; People v. Moss, 70 A.D.3d 862, 894 N.Y.S.2d 123 ).
The defendant's valid waiver of his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341, 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. Day, 181 A.D.3d 906, 119 N.Y.S.3d 869 ) precludes appellate review of his claim that he was deprived of the effective assistance of counsel except to the extent that the alleged ineffective assistance affected the voluntariness of his pleas (see People v. Luck, 175 A.D.3d 1430, 1432, 109 N.Y.S.3d 220 ; People v. Dancy, 156 A.D.3d 717, 717–718, 66 N.Y.S.3d 530 ). That aspect of his contention 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 ). Although the defendant made a post-conviction motion pursuant to CPL article 440 to vacate the judgments of conviction, the issues raised in that motion are not properly before this Court, as he was denied leave to appeal from the order denying that motion (see People v. Dunaway, 134 A.D.3d 952, 954, 22 N.Y.S.3d 476 ; People v. Coleman, 125 A.D.3d 879, 881, 3 N.Y.S.3d 130 ).
The defendant's contention that he was improperly adjudicated a persistent violent felony offender is also unpreserved for appellate review as he did not challenge the constitutionality of his prior convictions or the predicate felony statement during the sentencing proceeding (see CPL 470.05[2] ; People v. Drummond, 143 A.D.3d 836, 838, 39 N.Y.S.3d 208 ; People v. Delston, 30 A.D.3d 536, 818 N.Y.S.2d 223 ). In any event, the Supreme Court properly adjudicated the defendant a persistent violent felony offender (see Penal Law § 70.08 ).
The defendant's remaining contentions are based on matter dehors the record and, thus, are not properly before this Court.
MASTRO, J.P., RIVERA, MILLER and DUFFY, JJ., concur.