| People v Miller |
| 2012 NY Slip Op 05443 [97 AD3d 607] |
| July 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v McKinley Miller, Appellant. |
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Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Cristin N.Connell of counsel; Jeffrey G. Bloomfield on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan,J.), rendered March 25, 2010, convicting him of attempted criminal possession of a weapon inthe second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court improperly accepted his plea of guilty inlight of his claim of innocence. However, the record of the plea allocution reveals that thedefendant admitted that he was guilty of attempted possession of a loaded firearm, and theSupreme Court made sufficient inquiry to assure that his plea of guilty was knowing, voluntary,and intelligent (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People vHarris, 61 NY2d 9, 16-17 [1983]; People v Nixon, 21 NY2d 338, 353 [1967],cert denied 393 US 1067 [1969]).
The defendant's claim that he was deprived of the effective assistance of counsel is based, inpart, on matter appearing on the record and, in part, on matter outside the record, and thusconstitutes 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]). Here, it is notevident from the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistance cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109; Peoplev Rohlehr, 87 AD3d 603, 604 [2011]). Dillon, J.P., Balkin, Belen and Austin, JJ.,concur.