Opinion
2020–00585 Ind. No. 771/19
11-30-2022
The PEOPLE, etc., respondent, v. Kemar MOORE, appellant.
Stacy E. Albin–Leone, Long Beach, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Monica M.C. Leiter and Andrew Fukuda of counsel), for respondent.
Stacy E. Albin–Leone, Long Beach, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Monica M.C. Leiter and Andrew Fukuda of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert A. Schwartz, J.), rendered December 6, 2019, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence. By decision and order dated March 16, 2022, this Court remitted the matter to the Supreme Court, Nassau County, to afford the defendant an opportunity to move to vacate his plea of guilty and thereafter for the submission of a report by the Supreme Court on any such motion. The appeal was held in abeyance pending receipt of the report (see People v. Moore, 203 A.D.3d 953, 163 N.Y.S.3d 618 ). The Supreme Court has filed its report.
ORDERED that the judgment is affirmed.
In a decision and order dated March 16, 2022, this Court remitted the matter to the Supreme Court, Nassau County, to afford the defendant an opportunity to move to vacate his plea of guilty based on the failure of the Supreme Court to advise the defendant of the possibility of deportation as a consequence of his plea as required by ( People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 ) (see People v. Moore, 203 A.D.3d 953, 163 N.Y.S.3d 618 ). At a hearing upon remittitur, the defendant indicated that no such motion would be forthcoming. In a report to this Court dated May 4, 2022, the Supreme Court advised that the defendant appeared before the court with counsel on May 2, 2022, at which time the defendant stated that he would not be moving to vacate his plea. Since the defendant declined to move to vacate his plea of guilty on the basis of the Supreme Court's failure to advise him of the possibility of deportation, there is no basis to vacate the plea and to reverse the judgment of conviction on this ground (see People v. Lopez–Alvarado, 194 A.D.3d 961, 962, 144 N.Y.S.3d 380 ; People v. Arana, 187 A.D.3d 1033, 1034, 131 N.Y.S.3d 240 ; People v. Kostyk, 186 A.D.3d 744, 745, 127 N.Y.S.3d 290 ).
Contrary to the defendant's contention, he was not deprived of due process by the Supreme Court's failure to hold an Outley hearing prior to imposing an enhanced sentence (see People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 ). "Due process requires that, before imposing an enhanced sentence, the court conduct an inquiry sufficient for it to determine that the defendant indeed violated the plea condition" ( People v. Murdock, 175 A.D.3d 1560, 1561, 109 N.Y.S.3d 358 ; see People v. Outley, 80 N.Y.2d at 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 ). Here, the court did conduct an inquiry which was sufficient to determine whether the defendant had violated the terms of the plea agreement by being rearrested. Therefore, the defendant's due process rights were not violated by the court's imposition of an enhanced sentence without first conducting an Outley hearing (see People v. Murdock, 175 A.D.3d at 1562, 109 N.Y.S.3d 358 ).
The defendant's contention that his counsel 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 ). 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 valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
CONNOLLY, J.P., CHRISTOPHER, GENOVESI and DOWLING, JJ., concur.