Opinion
11-12-2015
The PEOPLE, etc., respondent, v. Andre CROSBY, appellant.
Salvatore C. Adamo, New York, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
Salvatore C. Adamo, New York, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered December 13, 2013, convicting him of grand larceny in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly or voluntarily entered is not preserved for appellate review because he did not move to vacate his plea or otherwise raise the issue before the Supreme Court (see CPL 470.05[2] ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ; People v. Folger, 110 A.D.3d 736, 971 N.Y.S.2d 890 ). In any event, the contention is without merit, as the record of the plea proceedings reflects that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (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 ; People v. Soria, 99 A.D.3d 1027, 952 N.Y.S.2d 300 ; People v. Gibson, 95 A.D.3d 1033, 1033–1034, 944 N.Y.S.2d 237 ).
The defendant's purported waiver of his right to appeal was invalid (see People v. George, 131 A.D.3d 623, 14 N.Y.S.3d 905 ; People v. Brown, 122 A.D.3d 133, 142, 992 N.Y.S.2d 297 ; see generally People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). However, the defendant's claim that he was deprived of his right to 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 ). 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, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ). 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 (see People v. Duren, 130 A.D.3d 842, 13 N.Y.S.3d 512 ; People v. Williams, 120 A.D.3d 721, 724, 991 N.Y.S.2d 427 ; People v. Addison, 107 A.D.3d 730, 732, 966 N.Y.S.2d 217 ; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ).
The defendant's claim that he was deprived of an opportunity to address the Supreme Court at the time of his sentencing, in violation of CPL 380.50, is unpreserved for appellate review (see People v. Green, 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415 ; People v. McGinn, 96 A.D.3d 977, 978, 946 N.Y.S.2d 489 ; People v. McCant, 79 A.D.3d 908, 912 N.Y.S.2d 422 ). In any event, the contention is without merit, as the record indicates that the court substantially complied with the requirements of the statute (see People v. McClain, 35 N.Y.2d 483, 491–492, 364 N.Y.S.2d 143, 323 N.E.2d 685 ; People v. McCant, 79 A.D.3d at 908, 912 N.Y.S.2d 422 ; People v. Lopez, 250 A.D.2d 707, 672 N.Y.S.2d 765 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).