People v. Fakhoury

103 A.D.3d 664, 959 N.Y.S.2d 269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2013
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (Posner, J.), rendered February 15, 2012, convicting him of criminal mischief in the fourth degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

By pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea bargaining process and sentence (see People v Petgen, 55 NY2d 529, 535 n 3 [1982]; People v Soria, 99 AD3d 1027 [2012]; People v Davis, 95 AD3d 1032, 1033 [2012]; People v Collier, 71 AD3d 909, 910 [2010]). To the extent that the defendant contends that he was otherwise deprived of the constitutional right to the effective assistance of counsel, his claim 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 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). It is not evident from the matter which appears on the record that the defendant was deprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant’s claim of ineffective assistance 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 Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

As the defendant has already served his sentence, the remaining issues, which relate to the length of his sentence, are academic (see People v Reyes, 74 NY2d 837 [1989]; People v Conklin, 46 AD3d 698 [2007]; People v Ackridge, 31 AD3d 654 [2006]; People v Washington, 108 AD2d 943 [1985]). Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.