| People v Salgado |
| 2013 NY Slip Op 07755 [111 AD3d 859] |
| November 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carlos Salgado, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County(Kelly, J.), rendered August 3, 2011, convicting him of attempted criminal possession ofa weapon in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18NY3d 257 [2011]; People vBatista, 100 AD3d 650 [2012]). Although the defendant signed a RocklandCounty pre-printed form waiver, as we have previously stated, this form "containederroneous statements with regard to the waiver of the right to appeal" and should nothave been utilized (People vEdmunson, 109 AD3d 621, 622 [2013]). The Supreme Court's terse colloquy atthe plea allocution failed to sufficiently advise the defendant of the nature of his right toappeal. Further, the defendant never orally confirmed that he grasped the concept of theappeal waiver and the nature of the right he was forgoing (see People vBradshaw, 18 NY3d at 267; cf. People v Ramos, 7 NY3d 737 [2006]; People v Edmunson, 109AD3d 621 [2013]). Under these circumstances, the record does not establish that thedefendant knowingly, voluntarily, and intelligently waived his right to appeal.
The defendant's contentions that his plea of guilty was not knowingly, voluntarily, orintelligently made because his attorney coerced him and the Supreme Court failed toassign him new counsel are unpreserved for appellate review, since he did not move tovacate his plea prior to the imposition of sentence (see People v Wright, 95 AD3d 1046 [2012]; People v Hammonds, 91 AD3d791 [2012]; People vReynolds, 85 AD3d 825 [2011]). In any event, the defendant's contentions arewithout merit (see People vWright, 95 AD3d 1046 [2012]; People v Caruso, 88 AD3d 809, 810 [2011]; People v Jackson, 87 AD3d552, 553 [2011]). The court providently exercised its discretion in denying thedefendant's request to substitute counsel, which was based on conclusory statements (see People v Porto, 16 NY3d93, 99-100 [2010]; People v Sides, 75 NY2d 822, 824 [1990]; People v Stevenson, 36 AD3d634 [2007]). Moreover, nothing that occurred during the plea allocution called intoquestion the voluntariness of the defendant's plea (see People v Lopez, 71 NY2d662, 665 [1988]).
The defendant's contention that he was deprived of the effective assistance ofcounsel [*2]because his attorney failed, at sentencing, toargue mitigating factors in favor of a lesser sentence than that imposed is belied by therecord (see People vRodriguez, 98 AD3d 693 [2012]). Furthermore, the defendant's contention thathe was deprived of the effective assistance of counsel because his attorney failed topursue pretrial hearings is based, in part, on matter appearing on the record and, in part,on matter outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]).Since the defendant's mixed claim of ineffective assistance of counsel cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing this claim in its entirety (see People v Evans, 16 NY3d571, 575 n 2 [2011]; People v Freeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d1108 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions have been forfeited by his plea of guilty(see People v Hansen, 95 NY2d 227, 230-231 [2000]; People vFernandez, 67 NY2d 686, 688 [1986]; People v Fernandez, 103 AD3d 813 [2013]; People v Gedin, 46 AD3d701 [2007]). Angiolillo, J.P., Hall, Roman and Cohen, JJ., concur.