| People v Gomez |
| 2014 NY Slip Op 00684 [114 AD3d 701] |
| February 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Clemente Gomez, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Laurie G.Sapakoff, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered September 27, 2011, convicting him of murder in the first degreeand murder 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 knowing, voluntary, andintelligent is unpreserved for appellate review, since he did not move to withdraw theplea (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Pryor, 11 AD3d565, 566 [2004]). Moreover, the exception to the preservation requirement isinapplicable here because the plea allocution did not cast significant doubt on thedefendant's guilt, negate an essential element of the crime, or call into question thevoluntariness of the plea (People v Lopez, 71 NY2d at 666). In any event, theplea was knowingly, voluntarily, and intelligently made (see People vFiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d at 666;People v Harris, 61 NY2d 9, 17 [1983]). The defendant's post-plea statements ofinnocence made to his probation officer which appear in the presentence investigationreport did not warrant vacatur of his plea (see People v Ingram, 80 AD3d 713, 714 [2011]).
The defendant's valid waiver of his right to appeal precludes appellate review of hisclaim that he was deprived of his right to effective assistance of counsel, except to theextent that the alleged ineffective assistance may have affected the voluntariness of hisplea (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 his counsel's conductaffected the voluntariness of his plea, his contention is based, in part, on matterappearing on the record and, in part, upon matter appearing outside the record, and thusconstitutes 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]; see People v Crawford, 106 AD3d 832, 833 [2013]; People v McClurkin, 96 AD3d784, 785-786 [2012]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852[1978]). Since the defendant's claim of ineffective assistance cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the [*2]appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805 [2012]). Rivera, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.