| People v Williams |
| 2013 NY Slip Op 06395 [110 AD3d 746] |
| October 2, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Isaiah Williams, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered June 19, 2012, convicting him of burglary in the second degree,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, andintelligently made because the County Court failed to conduct an adequate inquiry duringthe plea allocution into whether the defendant's alleged intoxication at the time of theburglary would negate the intent element of the crime of burglary in the second degree isunpreserved for appellate review, since he did not move to withdraw his plea of guilty(see People v Lopez, 71 NY2d 662, 665 [1988]; People v Delarosa, 104 AD3d956, 956 [2013]; People vDuncan, 78 AD3d 1193, 1194 [2010]; People v Colston, 68 AD3d 1130, 1130 [2009]). Moreover,the exception to the preservation requirement does not apply here, since the defendant'srecitation of the facts underlying the crime to which he pleaded guilty did not clearly castsignificant doubt on his guilt, negate an essential element of the crime, or call intoquestion the voluntariness of the plea (see People v Lopez, 71 NY2d at 666;People v Delarosa, 104 AD3d at 956; People v Colston, 68 AD3d at1130; People v Nash, 38AD3d 684, 684 [2007]).
The County Court providently exercised its discretion in denying the defendantyouthful offender treatment (see CPL 720.20 [1] [a]; People v Morrow, 84 AD3d1412, 1413 [2011]; Peoplev Lopez, 82 AD3d 906, 907 [2011]; People v Huffman, 47 AD3d 646, 646 [2008]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's contention that he did not receive the effective assistance of counselis not reviewable on this appeal, because it is based, in part, on matter outside 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 [*2]assistance of counsel (cf. People v Crump, 53NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant'sclaim of 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 [2012]).
The defendant's remaining contention concerning restitution is unpreserved forappellate review and we decline to reach it in the exercise of our interest of justicejurisdiction. Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.