Opinion
2014-01-22
The PEOPLE, etc., respondent, v. Norberto ORTEGA, appellant.
Marianne Karas, Thornwood, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Steven A. Bender of counsel), for respondent.
Marianne Karas, Thornwood, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered October 18, 2012, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
To the extent that the defendant contends that his plea of guilty was not knowing, voluntary, and intelligent, that contention is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( seeCPL 220.60[3]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220). The “rare case” exception to the preservation rule does not apply here because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).
By pleading guilty, the defendant forfeited his claims of ineffective assistance of counsel which did not directly involve the plea bargaining process ( see People v. Opoku, 61 A.D.3d 705, 876 N.Y.S.2d 493). The defendant's claim that he was deprived of the effective assistance of counsel with respect to the plea bargaining process 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 ( see People v. Edmunson, 109 A.D.3d 621, 622, 970 N.Y.S.2d 635; People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386). 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, 825, 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). Since the defendant's claim of ineffective assistance, to the extent that it has not been forfeited by his plea of guilty, 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 ( see People v. Edmunson, 109 A.D.3d at 623, 970 N.Y.S.2d 635; 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). RIVERA, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.