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People v. Porter

95 A.D.3d 1239, 943 N.Y.S.2d 913
Procedural entryThis page is a short order in People v. Porter. Read the opinion of the Court — 82 A.D.3d 1412 →
Appellate Division of the Supreme Court of the State of New York·Decided May 23, 2012·Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered November 29, 2010, convicting him of robbery in the first 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 not knowing, voluntary, and intelligent because the County Court did not specifically inform him of the availability of an affirmative defense to robbery in the first degree is unpreserved for appellate review (see People v Toxey, 86 NY2d 725, 726 [1995]; People v McCallum, 84 AD3d 1117, 1118 [2011]; People v Payton, 53 AD3d 590 [2008]; People v Wallace, 247 AD2d 257, 259 [1998]; People v Feichtl, 134 AD2d 364 [1987]). In any event, the record demonstrates that the defendant’s plea was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]).

The defendant’s claim that he was deprived of the constitutional right to 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], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [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 [1981]; People v Brown, 45 NY2d 852 [1978]). The defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the record. Accordingly, a CPL 440.10 application is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Balkin, Belen and Austin, JJ., concur.

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People v. Porter, 95 A.D.3d 1239, 943 N.Y.S.2d 913 (N.Y. Ct. App. 2012).

95 A.D.3d 1239 (People v. Porter) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Fiumefreddo
626 N.E.2d 646 (New York Court of Appeals, 1993)
People v. Toxey
655 N.E.2d 160 (New York Court of Appeals, 1995)
People v. Evans
949 N.E.2d 457 (New York Court of Appeals, 2011)
People v. Brown
382 N.E.2d 1149 (New York Court of Appeals, 1978)
People v. Crump
422 N.E.2d 815 (New York Court of Appeals, 1981)
People v. Payton
53 A.D.3d 590 (Appellate Division of the Supreme Court of New York, 2008)
People v. McCallum
84 A.D.3d 1117 (Appellate Division of the Supreme Court of New York, 2011)
People v. Rohlehr
87 A.D.3d 603 (Appellate Division of the Supreme Court of New York, 2011)
People v. Maxwell
89 A.D.3d 1108 (Appellate Division of the Supreme Court of New York, 2011)
People v. Freeman
93 A.D.3d 805 (Appellate Division of the Supreme Court of New York, 2012)
People v. Suitte
90 A.D.2d 80 (Appellate Division of the Supreme Court of New York, 1982)
People v. Feichtl
134 A.D.2d 364 (Appellate Division of the Supreme Court of New York, 1987)
People v. Wallace
247 A.D.2d 257 (Appellate Division of the Supreme Court of New York, 1998)