Opinion
2018–02265 S.C.I. No. 276/17
06-26-2019
The PEOPLE, etc., Respondent, v. Jonathan MISHK, Appellant.
Salvatore C. Adamo, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered February 16, 2018, convicting him of rape in the third degree (two counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Although the defendant validly waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 254, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), his claim with respect to the voluntariness of the plea survives such a waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Murphy, 114 A.D.3d 704, 705, 979 N.Y.S.2d 829 ; People v. Joseph, 103 A.D.3d 665, 959 N.Y.S.2d 261 ). The defendant's contention, however, that his plea was not knowing, voluntary, or intelligent is unpreserved for appellate review, since he did not move to withdraw his plea prior to sentencing (see CPL 220.60[3] ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Murray, 15 N.Y.3d 725, 726, 906 N.Y.S.2d 521, 932 N.E.2d 877 ; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 ; People v. Dancy, 156 A.D.3d 717, 66 N.Y.S.3d 530 ). In any event, the plea of guilty was knowing, voluntary, and intelligent (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Harris, 61 N.Y.2d 9, 19–21, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive, as well as his contention that he received the ineffective assistance of counsel in connection with that sentence (see People v. Jacobs, 101 A.D.3d 1044, 955 N.Y.S.2d 525 ; People v. Collier, 71 A.D.3d 909, 910, 895 N.Y.S.2d 848 ). To the extent that the defendant is claiming that the alleged ineffective assistance of counsel affected the voluntariness of his plea (see People v. Rodriguez, 144 A.D.3d 950, 40 N.Y.S.3d 786 ; People v. Moore, 140 A.D.3d 1091, 34 N.Y.S.3d 147 ), the 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" ( 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 ).
The defendant's remaining contention is without merit (see Penal Law §§ 70.45[2–a][a] ; 70.80[4][a][iv] ).
DILLON, J.P., CHAMBERS, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.