| People v Ross |
| 2014 NY Slip Op 00535 [113 AD3d 877] |
| January 29, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Von I. Ross, Appellant. |
—[*1] David M. Hoovler, District Attorney, Middletown, N.Y. (Lauren E. Grasso andAndrew R. Kass of counsel), for respondent.
Appeals by the defendant from two judgments of the County Court, Orange County(Freehill, J.), both rendered January 9, 2012, convicting him of attempted burglary in thethird degree under S.C.I. No. 11-00052, and burglary in the third degree underindictment No. 11-00285, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
Contrary to the People's contention, the record does not support the conclusion thatthe defendant knowingly, voluntarily, and intelligently waived his right to appeal, sincethere is no indication that the defendant "understood the distinction between the right toappeal and other trial rights forfeited incident to [his] guilty plea[s]" (People v Moyett, 7 NY3d892, 893 [2006]; seePeople v Lopez, 6 NY3d 248, 257 [2006]; People v Jacob, 94 AD3d 1142, 1143-1144 [2012]).
However, the transcripts of the plea proceedings amply demonstrate that thedefendant's pleas of guilty were knowingly, voluntarily, and intelligently entered (see People v Wolven, 105AD3d 782 [2013]; People vElufe, 102 AD3d 982 [2013]; see generally People v Fiumefreddo, 82NY2d 536, 543 [1993]). Moreover, by validly pleading guilty, the defendant forfeited hisclaim that he was denied his right to testify before the grand jury (see People v Benitez, 84 AD3d826, 826-827 [2011]; People v Standley, 269 AD2d 614, 615 [2000];People v Ferrara, 99 AD2d 257, 259 [1984]).
By pleading guilty, the defendant forfeited his claims of ineffective assistance ofcounsel which did not directly involve the plea bargaining process (see People v Opoku, 61 AD3d705 [2009]). The defendant's claim that he was deprived of the effective assistanceof counsel with respect to the plea bargaining process is based, in part, on matterappearing on the record and, in part, on matter outside the record and, thus, constitutes amixed claim of ineffective assistance (see People v Edmunson, 109 AD3d 621, 622 [2013]; People v Maxwell, 89 AD3d1108, 1109 [2011]). It is not evident from the matter appearing on the record that thedefendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852 [1978]).Since the defendant's claim of ineffective assistance, to the extent that it has not beenforfeited by his plea of [*2]guilty, cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People vEdmunson, 109 AD3d at 623; People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Rivera, Leventhal and Chambers, JJ., concur.