Opinion
2016-04118, 2016-04485 Ind. Nos. 1085/14, 1131/14
06-17-2020
The PEOPLE, etc., Respondent, v. Diquan BOOKER, Appellant.
Jillian S. Harrington, Staten Island, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Brian Witthuhn and Rebecca L. Abensur of counsel), for respondent.
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Brian Witthuhn and Rebecca L. Abensur of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the judgments are affirmed.
The defendant contends that his pleas of guilty were not knowing, voluntary, and intelligent. The defendant failed to preserve this contention for appellate review since he did not move to vacate his pleas or otherwise raise the issue before the Supreme Court (see CPL 470.05[2] ; People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Griffin , 173 A.D.3d 1203, 1203–1204, 103 N.Y.S.3d 591 ). In any event, the record demonstrates that, despite the defendant's history of mental health issues, his pleas were knowingly, intelligently, and voluntarily entered (see People v. Blanco , 175 A.D.3d 1548, 1548, 106 N.Y.S.3d 902 ; People v. Narbonne , 131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ). The defendant's contention that his pleas were not knowing, intelligent, and voluntary because the court did not inform him of the possibility of additional incarceration if he were to violate a condition of his postrelease supervision is without merit (see People v. Monk , 21 N.Y.3d 27, 32, 966 N.Y.S.2d 739, 989 N.E.2d 1 ).
The defendant's contention that he was deprived of the effective assistance of counsel 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 n2, 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 ).
AUSTIN, J.P., MALTESE, LASALLE and BRATHWAITE NELSON, JJ., concur.