Opinion
2016–02043 S.C.I. No. 14–00100
02-07-2018
The PEOPLE, etc., respondent, v. David HILI, appellant.
Jason M. Bernheimer, Katonah, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Jennifer Spencer of counsel), for respondent.
Jason M. Bernheimer, Katonah, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Jennifer Spencer of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, HECTOR D. LASALLE, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Westchester County (Anne E. Minihan, J.), rendered May 21, 2015, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 142–144, 992 N.Y.S.2d 297 ). The defendant's valid waiver of his right to appeal bars review of his challenge to the procedures used by the County Court in its determination regarding restitution (see People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Rohs, 140 A.D.3d 800, 800, 30 N.Y.S.3d 888 ; People v. Burton, 69 A.D.3d 644, 644, 891 N.Y.S.2d 292 ; People v. Ordover, 67 A.D.3d 824, 824, 887 N.Y.S.2d 858 ; People v. Williams, 62 A.D.3d 730, 731, 877 N.Y.S.2d 701 ; People v. Caba, 238 A.D.2d 603, 657 N.Y.S.2d 963 ).
The defendant's contention that his attorney was ineffective 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 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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 ; People v. McClurkin, 96 A.D.3d 784, 785, 945 N.Y.S.2d 718 ; People v. Bruno, 73 A.D.3d 941, 942, 900 N.Y.S.2d 447 ). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding would be the appropriate forum for reviewing the claim in its entirety (see People v. McClurkin, 96 A.D.3d at 785, 945 N.Y.S.2d 718 ; see generally 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 ).
DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.