Opinion
2018–10335 Ind. No. 932/17
12-16-2020
The PEOPLE, etc., respondent, v. Maurice PELZER, appellant.
Marianne Karas, Thornwood, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Cristin N. Connell and Libbi Vilher of counsel; Matthew C. Frankel on the brief), for respondent.
Marianne Karas, Thornwood, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Cristin N. Connell and Libbi Vilher of counsel; Matthew C. Frankel on the brief), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert A. Schwartz, J.), rendered February 13, 2018, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his plea of guilty was involuntary because he was not informed at the plea proceeding that he would be ineligible for the Willard drug treatment program is unpreserved for appellate review (see People v. Lamotte , 184 A.D.3d 907, 907, 125 N.Y.S.3d 500 ). In any event, the record reflects that there was no promise by the People or the Supreme Court that the defendant would be placed in the Willard program, and the court's representation that it would consider the Willard program was not part of the defendant's plea agreement (see People v. Lamotte , 184 A.D.3d at 908, 125 N.Y.S.3d 500 ; People v. Johnson , 137 A.D.3d 1419, 1420, 28 N.Y.S.3d 134 ). Thus, the record does not support the defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made due to the court's remarks regarding the Willard program during the plea proceeding.
The defendant's contention that he was deprived of the effective assistance of counsel 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 n2, 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 ).
MASTRO, J.P., MILLER, DUFFY, LASALLE and WOOTEN, JJ., concur.