| People v Gaines |
| 2013 NY Slip Op 07060 [110 AD3d 1099] |
| October 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Roy H. Gaines, Jr., Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Ezra E.Zonana of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered August 6, 2012, convicting him of operating a motor vehiclewhile under the influence of alcohol, as a felony, and aggravated unlicensed operation ofa motor vehicle in the first 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 entered because the Supreme Court allegedly misinformed him of thepotential sentence that he would receive if he pleaded guilty is unpreserved for appellatereview (see People vMurray, 15 NY3d 725 [2010]; cf. People v McAlpin, 17 NY3d 936 [2011]; People v Louree, 8 NY3d541 [2007]). In any event, an objective reading of the plea agreement demonstratesthat its terms were complied with, and the defendant's misinterpretation of the agreementor his disappointment with his sentence does not suffice as a reason for vacating his pleaof guilty (see People v Cataldo, 39 NY2d 578, 579-580 [1976]; People v Philpot, 99 AD3d1025 [2012]; People vRodriguez, 98 AD3d 693 [2012]; People v Hulsey, 244 AD2d 358, 359[1997]; People v Welch, 129 AD2d 752 [1987]).
The defendant's claim that he was deprived of the right to the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe 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]). In this case, it is not evident fromthe matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistancecannot be resolved without reference to matter outside the record, a CPL 440.10proceeding 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]; People vHaynes, 70 AD3d 718 [2010]; People v Moran, 57 AD3d 1010 [2008]).
The defendant's remaining contention is without merit. Mastro, J.P., Balkin, Sgroiand Hinds-Radix, JJ., concur.