| People v Fernandez |
| 2013 NY Slip Op 01093 [103 AD3d 813] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Hasuan C. Fernandez, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Freehill, J.), rendered October 27, 2011, convicting him of burglary in the third degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
A defendant's claim of ineffective assistance of counsel in connection with the pleabargaining process generally survives a plea of guilty and valid waiver of the right toappeal (see e.g. People vGedin, 46 AD3d 701 [2007]). Here, however, the defendant's contention that hedid not receive the effective assistance of counsel is not reviewable on this appeal,because it is based, in part, on matter outside the record, and thus constitutes a " 'mixedclaim' " of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011], quotingPeople v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Itis not evident from the matter appearing on the record that the defendant was deprived ofthe effective assistance of counsel (cf. People v Crump, 53 NY2d 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, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Freeman, 93AD3d 805 [2012]).
Although a claim that a plea of guilty was not entered voluntarily survives a validwaiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]), thedefendant's contention that his plea was not entered voluntarily is unpreserved forappellate review because he did not move to vacate his plea or otherwise raise this issuebefore the County Court (seePeople v Perez, 51 AD3d 1043 [2008]). In any event, the defendant's plea ofguilty was entered voluntarily, knowingly, and intelligently (see People vFiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662, 666[1988]; People v Harris, 61 NY2d 9, 17 [1983]). Angiolillo, J.P., Balkin, Austinand Miller, JJ., concur.