| People v Young |
| 2012 NY Slip Op 05665 [97 AD3d 771] |
| July 18, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Calvin Young, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Hinrichs,J.), rendered February 28, 2011, convicting him of attempted criminal possession of a controlledsubstance in the fourth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
At the defendant's plea allocution, he knowingly, voluntarily, and intelligently waived hisright to appeal (see People v Ramos,7 NY3d 737, 738 [2006]; People vLopez, 6 NY3d 248, 255 [2006]; People v Muniz, 91 NY2d 570, 575 [1998];People v Seaberg, 74 NY2d 1, 9 [1989]). The fact that the defendant was advised of hisright to appeal at the end of the sentencing proceeding did not vitiate his valid waiver of thatright (see People v Moissett, 76 NY2d 909, 912 [1990]; People v Crews, 92 AD3d 795[2012]; People v Brown, 26 AD3d340, 341 [2006]; People vManzullo, 14 AD3d 717 [2005]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontentions that the sentence imposed was excessive and that he was deprived of the effectiveassistance of counsel except to the extent that the alleged ineffective assistance affected thevoluntariness of his plea (see People v Lopez, 6 NY3d at 255; People v Seaberg,74 NY2d at 9; People v Watt, 82AD3d 912 [2011]; People vHughes, 62 AD3d 1026 [2009]). To the extent that the defendant's claim of ineffectiveassistance of counsel does relate to the voluntariness of his plea, his claim is based, in part, onmatter 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 notevident from the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel as it relates to the voluntariness of his plea (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]). Angiolillo, J.P., Florio, Leventhal and Lott, JJ., concur.