Opinion
01-25-2017
The PEOPLE, etc., respondent, v. Edgardo A. CERNA, appellant.
Arleen Lewis, Blauvelt, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
Arleen Lewis, Blauvelt, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
Appeals by the defendant from two judgments of the County Court, Rockland County (Thorsen, J.), both rendered March 24, 2015, convicting him of criminal possession of stolen property in the fourth degree under Indictment No. 13–00502 and criminal mischief in the second degree under Indictment No. 13–00529, upon his pleas of guilty (Nelson, J.), and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant's claim of ineffective assistance of counsel with respect to the voluntariness of his plea under Indictment No. 13–00502 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. Taylor, 98 A.D.3d 593, 594, 949 N.Y.S.2d 209, affd. sub nom. People v. Heidgen, 22 N.Y.3d 259, 980 N.Y.S.2d 320, 3 N.E.3d 657 ). 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 ). Because 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. Taylor, 98 A.D.3d at 594, 949 N.Y.S.2d 209 ; see also People v. Delancey, 94 A.D.3d 1015, 942 N.Y.S.2d 170 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's valid waiver of his right to appeal under Indictment No. 13–00529 (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ) precludes our review of his challenge to the County Court's suppression determination (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Gulifield, 138 A.D.3d 1139, 1139–1140, 28 N.Y.S.3d 898 ; People v. Hicks, 134 A.D.3d 854, 19 N.Y.S.3d 907 ; People v.
Dupree, 130 A.D.3d 752, 753, 11 N.Y.S.3d 865 ).
LEVENTHAL, J.P., HALL, SGROI and DUFFY, JJ., concur.