| People v Devodier |
| 2013 NY Slip Op 00351 [102 AD3d 884] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Roger W. Devodier, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Efman, J.), rendered September 25, 2009, convicting him of attempted robbery in thesecond degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's valid waiver of his right to appeal precludes review of his challengeto the factual sufficiency of the plea allocution (see People v Crews, 92 AD3d 795 [2012]; People v Hardee, 84 AD3d835 [2011]) and to the procedure used to adjudicate him a persistent violent felonyoffender (see People vKosse, 94 AD3d 908 [2012]; People v Collier, 71 AD3d 909, 910 [2010]).
The defendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review, since he did not move towithdraw his plea on this ground prior to the imposition of sentence (see People vClarke, 93 NY2d 904, 906 [1999]; People v Andrea, 98 AD3d 627 [2012]). The "rare case"exception to the preservation rule does not apply here because the defendant's pleaallocution did not cast significant doubt upon his guilt, negate an essential element of thecrime, or call into question the voluntariness of the plea (People v Lopez, 71NY2d 662, 666 [1988]; seePeople v Gibson, 95 AD3d 1033 [2012], lv denied 19 NY3d 996[2012]).
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, onmatter outside the record, and thus constitutes a " 'mixed claim[ ]' " of ineffectiveassistance (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Inthis case, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claimof ineffective assistance cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]).[*2]
By pleading guilty, the defendant forfeited hispresent contentions regarding prosecutorial misconduct and the sufficiency of theevidence before the grand jury (see People v Hansen, 95 NY2d 227, 233 [2000];People v Wager, 34 AD3d505, 506 [2006]). Mastro, J.P., Rivera, Dickerson and Lott, JJ., concur.