| People v Shemack |
| 2007 NY Slip Op 09611 [46 AD3d 582] |
| December 4, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shawn Shemack, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Valentina M.Tejera of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.),rendered December 23, 2003, convicting him of arson in the second degree, upon his plea ofguilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of his omnibus motion which was to suppress physical evidence and statements made tolaw enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the record clearly establishes that his plea of guilty "'represent[ed] a voluntary and intelligent choice among alternative courses of action open to[him]' " (People v Louree, 8 NY3d541, 545 [2007], quoting People v Ford, 86 NY2d 397, 403 [1995]).
Contrary to the People's contention, however, the defendant's waiver of his right to appealwas ineffective, as there is no indication in the record "that defendant understood the distinctionbetween the right to appeal and other trial rights forfeited incident to a guilty plea" (People v Moyett, 7 NY3d 892, 893[2006]; see People v Lopez, 6 NY3d248, 257 [2006]; People v Elcine,43 AD3d 1176 [2007]). Based on the evidence adduced at the suppression hearing, wefind no error in the hearing court's determination (see People v Delfino, 234 AD2d 382,383 [1996]; People v Baird, 155 AD2d 918, 919 [1989]; see also Stansbury vCalifornia, 511 US 318, 323-324 [1994]; People v Rodney P. [Anonymous], 21NY2d 1, 6 [1967]; People v Petty, 204 AD2d 125, 126 [1994]).[*2]
The defendant's claim of ineffective assistance of counselis based on matter dehors the record and, therefore, cannot be reviewed on direct appeal (see People v Hernandez, 44 AD3d684 [2007]; People v Maize, 40AD3d 884 [2007]).
The defendant's remaining contention is without merit. Crane, J.P., Rivera, Angiolillo andDickerson, JJ., concur.