| People v Watts |
| 2012 NY Slip Op 08050 [100 AD3d 938] |
| November 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Watts, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy of counsel; Matthew C.Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Donnino, J.),rendered February 8, 2010, convicting him of burglary in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although a claim that a plea of guilty was not voluntary survives a waiver of appeal(People v Seaberg, 74 NY2d 1, 10 [1989]), the defendant's contention that his plea wasnot voluntary is unpreserved for appellate review because he did not move to vacate his plea orotherwise raise this issue before the County Court (see People v Perez, 51 AD3d 1043 [2008]). In any event, a plea ofguilty will be upheld as valid if it was entered voluntarily, knowingly, and intelligently (seePeople v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662,666 [1988]; People v Harris, 61 NY2d 9, 17 [1983]). Here, the defendant's plea of guiltywas entered voluntarily, knowingly, and intelligently. Contrary to his contention, the CountyCourt properly apprised him of the prison sentence he was agreeing to as part of the pleaagreement.
The defendant's further contention that the County Court should have ordered a sua sponteexamination of his mental capacity is based on a psychologist's report that is not part of therecord on appeal. The defendant's further contention that his trial counsel was ineffective forfailing to make the psychologist's report part of the record is also based on matters outside therecord. A CPL 440.10 proceeding is the appropriate forum for reviewing these claims (see e.g. People v Freeman, 93 AD3d805, 806 [2012]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.