Opinion
2017–09780 Ind. No. 16–00086
03-09-2022
The PEOPLE, etc., respondent, v. Thomas LORENZO–PEREZ, appellant.
Warren S. Hecht, Forest Hills, NY, for appellant. Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher of counsel), for respondent.
Warren S. Hecht, Forest Hills, NY, for appellant.
Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Rockland County (Barry E. Warhit, J., at plea; Kevin F. Russo, J., at sentence), rendered January 25, 2017, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The County Court's colloquy on this issue "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal" ( People v. Howard, 183 A.D.3d 640, 640, 121 N.Y.S.3d 622 ; see People v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778 ; People v. Coverdale, 189 A.D.3d 1610, 1610, 136 N.Y.S.3d 335 ; People v. Dixon, 184 A.D.3d 854, 855, 124 N.Y.S.3d 575 ). The written waiver form, which also improperly indicated that the defendant was waiving "any and all" appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues, did not overcome the court's error (see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Momoh, 192 A.D.3d at 916, 140 N.Y.S.3d 778 ; People v. Seymour, 189 A.D.3d 1269, 134 N.Y.S.3d 211 ; People v. Dixon, 184 A.D.3d at 855, 124 N.Y.S.3d 575 ). Thus, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim.
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contention that his plea of guilty was not voluntary because the County Court failed to inquire into a possible intoxication defense is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Barrow, 187 A.D.3d 1034, 1034, 131 N.Y.S.3d 164 ). Contrary to the defendant's contention, the exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Steele, 197 A.D.3d 512, 513, 148 N.Y.S.3d 722 ; People v. Barrow, 187 A.D.3d at 1034–1035, 131 N.Y.S.3d 164 ; People v. Loftus, 183 A.D.3d 631, 632, 121 N.Y.S.3d 635 ). In any event, the record establishes that the plea was knowingly, voluntarily, and intelligently entered (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Barrow, 187 A.D.3d at 1035, 131 N.Y.S.3d 164 ). Contrary to the defendant's contention, his postplea statements reflected in the presentence report did not obligate the court to conduct a sua sponte inquiry concerning a possible intoxication defense (see People v. Steele, 197 A.D.3d at 513, 148 N.Y.S.3d 722 ; People v. Barrow, 187 A.D.3d at 1035, 131 N.Y.S.3d 164 ; People v. Lopez–Hilario, 178 A.D.3d 1078, 1078–1079, 112 N.Y.S.3d 564 ; People v. Anderson, 170 A.D.3d 878, 878, 93 N.Y.S.3d 864 ).
The defendant's claim that he was deprived of 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 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). 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, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
CHAMBERS, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.