| People v Palmer |
| 2012 NY Slip Op 03859 [95 AD3d 1141] |
| May 15, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KevinPalmer, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered August 9, 2010, convicting him of rape in the third degree, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently made is unpreserved for appellate review since he did not move to withdraw his pleaon that ground prior to sentencing (see CPL 470.05 [2]; People v Hernandez-Bautista, 89 AD3d749 [2011]; People v Gantt, 85AD3d 815, 816 [2011]). In any event, the plea was knowingly, voluntarily, and intelligentlymade (see People v Seeber, 4 NY3d780 [2005]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People vHarris, 61 NY2d 9 [1983]).
The defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, on matteroutside the record, and thus constitutes a " 'mixed claim' " of ineffective assistance (People v Maxwell, 89 AD3d 1108,1109 [2011], quoting People vEvans, 16 NY3d 571, 575 n 2 [2011], cert denied, 565 US —, 132 S Ct325 [2011]). In this case, it is not evident from the matter appearing on the record that thedefendant was deprived of the effective assistance of counsel (cf. People v Crump, 53NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claim ofineffective assistance cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603,604 [2011]).
The defendant's remaining contentions are without merit. Skelos, J.P., Angiolillo, Belen, Lottand Roman, JJ., concur.