People v. Martinez

2021 NY Slip Op 02825, 143 N.Y.S.3d 574, 194 A.D.3d 753

Opinion

People v Martinez (2021 NY Slip Op 02825)

People v Martinez

2021 NY Slip Op 02825

Decided on May 5, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 5, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
ROBERT J. MILLER
COLLEEN D. DUFFY
HECTOR D. LASALLE
PAUL WOOTEN, JJ.

2019-12598
(Ind. No. 18-505)

[*1]The People of the State of New York, respondent,

v

Marco A. Martinez, appellant.

Thomas R. Villecco, Jericho, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered April 8, 2019, convicting him of aggravated operating a motor vehicle while under the influence of alcohol, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of the effective assistance of counsel based upon his attorney's alleged failure to accurately advise him of the immigration consequences of his plea 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; see People v Evans, 16 NY3d 571, 575 n 2). 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 AD3d 805, 806; People v Maxwell, 89 AD3d at 1109).

To the extent that the People argue that the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowingly, intelligently, and voluntarily entered because of defense counsel's alleged misadvice as to the immigration consequences of his plea, under the circumstances presented, preservation was not required (see People v Peque, 22 NY3d 168; People v Louree, 8 NY3d 541, 546).

CHAMBERS, J.P., MILLER, DUFFY, LASALLE and WOOTEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court