| People v Hernandez |
| 2013 NY Slip Op 06708 [110 AD3d 919] |
| October 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lizbeth Hernandez, 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(Neary, J.), rendered March 28, 2012, convicting her of burglary in the second degree,upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's valid waiver of her right to appeal precludes review of her challengeto the factual sufficiency of the plea allocution (see People v Devodier, 102 AD3d 884 [2013]; People v Crews, 92 AD3d795 [2012]; People vHardee, 84 AD3d 835 [2011]).
The defendant's contention that her plea of guilty was not knowingly, voluntarily,and intelligently entered is unpreserved for appellate review, since she did not move towithdraw her plea on this ground prior to the imposition of sentence (see People vClarke, 93 NY2d 904, 906 [1999]; People v Devodier, 102 AD3d 884 [2013]; People v Andrea, 98 AD3d627 [2012]). Furthermore, the "rare case" exception to the preservation rule does notapply here, since the defendant's plea allocution did not cast significant doubt upon herguilt, negate an essential element of the crime, or call into question the voluntariness ofthe plea (People v Lopez, 71 NY2d 662, 666 [1988]). Moreover, the defendant'spostplea statements regarding the commission of the crime made to her probation officerthat appear in the presentence investigation report were insufficient to warrantwithdrawal of her plea (see People v Dixon, 29 NY2d 55, 57 [1971]; People v Crawford, 106 AD3d832, 833 [2013], lv denied 21 NY3d 1014 [2013]; People v Soria, 99 AD3d1027 [2012]; People vGibson, 95 AD3d 1033, 1033-1034 [2012]; People v Dazzo, 92 AD3d 796 [2012]).
The defendant's valid waiver of her right to appeal precludes appellate review of herclaim that she was deprived of her right to effective assistance of counsel, except to theextent that the alleged ineffective assistance may have affected the voluntariness of herplea (see People vMontalvo, 105 AD3d 774, 775 [2013]; People v Ramos, 77 AD3d 773, 774 [2010]; People v Drago, 50 AD3d920 [2008]). To the extent that the defendant contends that her counsel's conductaffected the voluntariness of her plea, her contention is predicated, at least in part, onmatters that are outside the record (see [*2]People v Maxwell, 89AD3d 1108, 1109 [2011]). Since it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]). Mastro, J.P., Balkin, Sgroi and Hinds-Radix, JJ., concur.