Opinion
11-04-2015
The PEOPLE, etc., respondent, v. Christopher DONOVAN, appellant.
Salvatore C. Adamo, New York, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.
Salvatore C. Adamo, New York, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, ROBERT J. MILLER, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Cohen, J.), rendered November 8, 2013, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea was not knowingly, voluntarily, or intelligently entered because it was affected by his attorney's failure to make any pretrial motion to suppress evidence and because the County Court did not conduct a proper plea allocution is not preserved for appellate review, since he did not move to withdraw his plea or otherwise raise these issues in the County Court (see People v. Williams, 129 A.D.3d 1000, 13 N.Y.S.3d 442 ; People v. King, 115 A.D.3d 986, 982 N.Y.S.2d 178 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ). In any event, the record reveals that the defendant's plea was knowingly, voluntarily, and intelligently entered (see People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687 ).
The defendant's contention that his plea was not knowingly, voluntarily, or intelligently entered because defense counsel failed to discuss the risks and benefits of pursuing a motion to suppress evidence or otherwise advise and consult with him rests on matter outside the record on appeal, and may not be reviewed on direct appeal (see People v. Thorne, 116 A.D.3d 988, 983 N.Y.S.2d 861 ; People v. Smith, 85 A.D.3d 1065, 925 N.Y.S.2d 864 ; People v. Griffith, 78 A.D.3d 1194, 1195, 913 N.Y.S.2d 264 ).
The defendant's contention that defense counsel was ineffective because he failed to make a pretrial suppression motion is not properly before this Court, since, by pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea negotiation process and sentence (see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669 ; People v. Moshier, 110 A.D.3d 832, 833, 972 N.Y.S.2d 675 ; People v. Patterson, 106 A.D.3d 757, 964 N.Y.S.2d 233 ; People v. Fakhoury, 103 A.D.3d 664, 664, 959 N.Y.S.2d 269 ).
To the extent that the defendant's claim of ineffective assistance of counsel does relate to the voluntariness of his plea, his 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" of counsel (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 ). Since the defendant's claim of ineffective assistance 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. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ).