| People v Cunningham |
| 2013 NY Slip Op 01284 [103 AD3d 916] |
| February 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kasem Cunningham, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered June 14, 2011, convicting him of murder in the first degree, murderin the second degree (two counts), and burglary in the first degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
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 of guilty prior to the imposition of sentence (see People vClarke, 93 NY2d 904 [1999]; People v Cohen, 100 AD3d 919 [2012]). In any event, itappears from this record that the defendant's decision to plead guilty was a legitimatestrategic decision (see People vMack, 90 AD3d 1317, 1322 [2011]).
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]).
The defendant's remaining contentions are without merit, or need not be addressed inlight of our determination. Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.