Opinion
2019-01864 S.C.I. 203/16
01-12-2022
The People of the State of New York, respondent, v. Jevon L. Ofield, appellant.
Arza Feldman, Manhasset, NY (Steven A. Feldman of counsel), for appellant. Robert V. Tendy, District Attorney, Carmel, NY (Nicholas LaStella of counsel), for respondent.
Arza Feldman, Manhasset, NY (Steven A. Feldman of counsel), for appellant.
Robert V. Tendy, District Attorney, Carmel, NY (Nicholas LaStella of counsel), for respondent.
HECTOR D. LASALLE, P.J. COLLEEN D. DUFFY WILLIAM G. FORD DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Putnam County (James F. Reitz, J.), rendered January 17, 2019, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of seven years, to be followed by a period of postrelease supervision of three years, and a fine in the sum of $5,000.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a fine in the sum of $5,000; as so modified, the judgment is affirmed.
The defendant's purported waiver of his right to appeal is invalid because the County Court's colloquy failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving that right (see People v Cobian, 186 A.D.3d 851; People v Parrish, 179 A.D.3d 841). In addition, although the record indicates that the defendant signed a written waiver of the right to appeal, the court failed to ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was aware of its contents (see People v Kang, 183 A.D.3d 640; People v Fludd, 175 A.D.3d 624; cf. People v Lewis, 182 A.D.3d 610; People v Cardona, 177 A.D.3d 647).
The defendant's claim of ineffective assistance of counsel constitutes a "mixed claim of ineffective assistance" because it is based, in part, on matter appearing on the record and, in part, on matter outside the record (People v Maxwell, 89 A.D.3d 1108, 1109; see People v Burke, 194 A.D.3d 834). 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 Momoh, 192 A.D.3d 915; People v Walker, 189 A.D.3d 1619, 1620).
The sentence imposed was excessive to the extent indicated herein (see People v Camarda, 138 A.D.3d 884, 885; People v Monroe, 212 A.D.2d 374; People v Suitte, 90 A.D.2d 80).
LASALLE, P.J., DUFFY, FORD and DOWLING, JJ., concur.