Opinion
2013-10-30
The PEOPLE, etc., respondent, v. Roy H. GAINES, Jr., appellant.
Marianne Karas, Thornwood, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Ezra E. Zonana of counsel), for respondent.
Marianne Karas, Thornwood, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Ezra E. Zonana of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered August 6, 2012, convicting him of operating a motor vehicle while under the influence of alcohol, as a felony, and aggravated unlicensed operation of a motor vehicle in the first degree, *267upon 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, voluntarily, and intelligently entered because the Supreme Court allegedly misinformed him of the potential sentence that he would receive if he pleaded guilty is unpreserved for appellate review ( see People v. Murray, 15 N.Y.3d 725, 906 N.Y.S.2d 521, 932 N.E.2d 877;cf. People v. McAlpin, 17 N.Y.3d 936, 936 N.Y.S.2d 666, 960 N.E.2d 435;People v. Louree, 8 N.Y.3d 541, 838 N.Y.S.2d 18, 869 N.E.2d 18). In any event, an objective reading of the plea agreement demonstrates that its terms were complied with, and the defendant's misinterpretation of the agreement or his disappointment with his sentence does not suffice as a reason for vacating his plea of guilty ( see People v. Cataldo, 39 N.Y.2d 578, 579–580, 384 N.Y.S.2d 763, 349 N.E.2d 863;People v. Philpot, 99 A.D.3d 1025, 952 N.Y.S.2d 455;People v. Rodriguez, 98 A.D.3d 693, 950 N.Y.S.2d 279;People v. Hulsey, 244 A.D.2d 358, 359, 665 N.Y.S.2d 326;People v. Welch, 129 A.D.2d 752, 514 N.Y.S.2d 513).
The defendant's claim that he was deprived of the 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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457,cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). 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). 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;People v. Haynes, 70 A.D.3d 718, 893 N.Y.S.2d 284;People v. Moran, 57 A.D.3d 1010, 869 N.Y.S.2d 793).
The defendant's remaining contention is without merit.