Opinion
5951 Ind. 3902/12
03-08-2018
The PEOPLE of the State of New York, Respondent, v. Asinyefigh PAPANYE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Mazzarelli, Oing, Moulton, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered November 28, 2012, convicting defendant, upon his plea of guilty, of forgery in the second degree, and sentencing him to a term of 1 to 3 years, unanimously affirmed.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, including counsel's plea bargaining strategy and evaluation of the likelihood of success of suppression issues (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards by negotiating a favorable disposition (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).Defendant's excessive sentence argument is moot because he has completed the prison and parole components of his sentence (see People v. Alexander, 148 A.D.3d 521, 48 N.Y.S.3d 592 [1st Dept. 2017] ). Even assuming, arguendo, that defendant's request for a reduction of his already-completed sentence to 364 days is not moot because such relief would affect his deportation situation, we perceive no basis for reducing the sentence. Defendant's cruel and unusual punishment argument is unpreserved and without merit.