People v. McKane

Appellate Division of the Supreme Court of New York

People v. McKane

138 A.D.3d 1034, 28 N.Y.S.3d 624

Appellate Division of the Supreme Court of the State of New York·Decided April 20, 2016·No. 2014-01985·Published

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered January 30, 2014, as amended August 19, 2014, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment, as amended, is affirmed.

The defendant’s contention that his plea of guilty was not knowing, voluntary, or intelligent because the County Court failed to advise him of his constitutional rights and the consequences of his plea is unpreserved for appellate review, since he did not move to withdraw his plea prior to the imposition of sentence (see CPL 220.60 [3]; People v Murray, 15 NY3d 725, 726 [2010]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Sirico, 135 AD3d 19, 22 [2015]). In any event, the plea was knowingly, voluntarily, and intelligently made (see Brady v United States, 397 US 742, 747 n 4 [1970]; People v Harris, 61 NY2d 9, 19 [1983]).

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 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 [2011]). In this case, 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 NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852, 853-854 [1978]). As 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 (see People v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).

The sentence imposed was not excessive (see People v Suitte, *1035 90 AD2d 80 [1982]).

Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.

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Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered January 30, 2014, as amended August 19, 2014, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment, as amended, is affirmed.

The defendant’s contention that his plea of guilty was not knowing, voluntary, or intelligent because the County Court failed to advise him of his constitutional rights and the consequences of his plea is unpreserved for appellate review, since he did not move to withdraw his plea prior to the imposition of sentence (see CPL 220.60 [3]; People v Murray, 15 NY3d 725, 726 [2010]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Sirico, 135 AD3d 19, 22 [2015]). In any event, the plea was knowingly, voluntarily, and intelligently made (see Brady v United States, 397 US 742, 747 n 4 [1970]; People v Harris, 61 NY2d 9, 19 [1983]).

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 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 [2011]). In this case, 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 NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852, 853-854 [1978]). As 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 (see People v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).

The sentence imposed was not excessive (see People v Suitte, *1035 90 AD2d 80 [1982]).

Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.

People v. McKane, 138 A.D.3d 1034, 28 N.Y.S.3d 624 (N.Y. Ct. App. 2016).

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