| People v Lopez |
| 2013 NY Slip Op 06023 [109 AD3d 1007] |
| September 25, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Luis Lopez, 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 County Court, Westchester County(Cacace, J.), rendered January 18, 2011, convicting him of attempted assault in the firstdegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly, voluntarily, orintelligently entered because he was under duress by the County Court to accept the pleaagreement without having sufficient time to consider it is unpreserved for appellatereview, since he did not move to withdraw his plea on that basis (see People v Leshore, 106AD3d 836 [2013]; People vMullen, 77 AD3d 686, 686 [2010]; People v Bolton, 63 AD3d 1087, 1087 [2009]; People v Scoca, 38 AD3d801, 801 [2007]). In any event, the defendant's claim is belied by the fact that, underoath, the defendant acknowledged that no one had threatened, coerced, or forced him toplead guilty, and that he was entering his plea of guilty freely and voluntarily (see People v Tavares, 103AD3d 820, 821 [2013]; People v Martinez, 78 AD3d 966, 967 [2010]; People v Perez, 51 AD3d1043, 1043 [2008]). Moreover, the court properly advised the defendant of theconstitutional rights he would automatically forfeit by pleading guilty (see People vTavares, 103 AD3d at 821).
The defendant's contention that he did not receive the effective assistance of counselbecause his counsel did not sufficiently prepare for the proceedings or conduct legal andfactual investigations to allow the defendant to make an informed decision with respectto the plea agreement is not reviewable on this appeal, since it is based, in part, on matteroutside the record, and thus constitutes a " 'mixed claim[ ]' " of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], certdenied 565 US —, 132 S Ct 325 [2011]). It is not evident from the matterappearing on the record that the defendant was deprived of the effective assistance ofcounsel (cf. People v Crump, 53 NY2d 824, 825 [1981]; People vBrown, 45 NY2d 852, 853-854 [1978]). Since the defendant's claim of ineffectiveassistance cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805, 806 [2012]).[*2]
The parties' remaining contentions need not bereached in light of our determination. Angiolillo, J.P., Balkin, Austin and Miller, JJ.,concur.