| People v Barrett |
| 2013 NY Slip Op 02410 [105 AD3d 862] |
| April 10, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Devon Barrett, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald Berk of counsel;Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Ayres, J.), rendered April 26, 2011, convicting him of assault in the first degree andcriminal possession of a weapon in the second degree, upon his plea of guilty, andimposing sentence. The appeal brings up for review the denial, after a hearing (Kase, J.),of that branch of the defendant's omnibus motion which was to suppress his statements tolaw enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the People's contention, under the particular facts of this case, thedefendant's purported waiver of his right to appeal was invalid (see People v Elmer, 19 NY3d501, 510 [2012]; People vBradshaw, 18 NY3d 257 [2011]; People v Lopez, 6 NY3d 248 [2006]; People v Vasquez, 101 AD3d1054 [2012]; People vJacob, 94 AD3d 1142, 1143-1144 [2012]; People v Remington, 90 AD3d 678, 679 [2011]; People v Mayo, 77 AD3d683, 684 [2010]).
However, the defendant's challenge to the factual sufficiency of his plea allocution isunpreserved for appellate review (see CPL 470.05 [2]; People v Toxey,86 NY2d 725, 726 [1995]; People v Stone, 91 AD3d 977, 977 [2012]). Moreover, the"rare case" exception to the preservation requirement does not apply here because thedefendant's allocution did not cast significant doubt on his guilt, negate an essentialelement of the crime, or call into question the voluntariness of his plea (People vLopez, 71 NY2d 662, 666 [1988]; see People v Stone, 91 AD3d at 977; People v Young, 88 AD3d918, 918 [2011]). In any event, the plea allocution was sufficient since "theallocution shows that the defendant understood the charges and made an intelligentdecision to enter a plea" (Peoplev Goldstein, 12 NY3d 295, 301 [2009]).
Contrary to the defendant's contention, the Supreme Court did not fail to adequatelyset forth "its fact-findings, legal conclusions, and reasons for its determination" when itdenied that branch of his omnibus motion which was to suppress his statements to lawenforcement officials (People v Jeffreys, 284 AD2d 550, 550 [2001]; seeCPL 710.60 [6]). Furthermore, a review of the totality of the circumstances demonstratesthat the defendant's statements to the police, which were given after he was informed of,and waived, his Miranda rights (see Miranda v Arizona, 384 US 436[1966]), [*2]were voluntarily made (see CPL60.45 [1]; People v Taylor,98 AD3d 593, 593 [2012], lv granted 20 NY3d 1065 [2013]; People v Nimmons, 95 AD3d1360, 1360 [2012]).
As the People correctly contend, to the extent that the defendant's claim ofineffective assistance of counsel does not directly involve the plea-bargaining process, itwas forfeited upon his plea of guilty (see People v Opoku, 61 AD3d 705, 705 [2009]; People v DeLuca, 45 AD3d777, 777 [2007]). To the extent that the defendant is claiming that ineffectiveassistance of counsel rendered his plea involuntary, his contention 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 (see People v Maxwell, 89 AD3d 1108, 1109 [2011];People v DeLuca, 45 AD3d at 777). It is not evident from the matter appearingon the record that the defendant was deprived of the effective assistance of counsel(cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d852 [1978]). Since the defendant's claim of ineffective assistance, to the extent that it hasnot been forfeited by his plea of guilty, cannot be resolved without reference to matteroutside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see Peoplev Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109).
The Supreme Court providently exercised its discretion in denying the defendant'srequest for youthful offender treatment (see CPL 720.20 [1]; People v Santiago, 101 AD3d1155, 1155 [2012]). Moreover, the sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Rivera, Chambers and Miller, JJ.,concur.