| People v Tarrant |
| 2014 NY Slip Op 00695 [114 AD3d 710] |
| February 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Tarrant, Appellant. |
—[*1] Adam B. Levy, District Attorney, Carmel, N.Y. (Heather M. Abissi of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County(Rooney, J.), rendered September 19, 2012, convicting him of criminal sale of acontrolled substance in the third 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 made is unpreserved for appellate review, since he did not move to withdrawhis plea prior to the imposition of sentence (see CPL 220.60 [3]; 470.05 [2];People v Clarke, 93 NY2d 904, 906 [1999]; People v Lopez, 71 NY2d662, 665 [1988]; People vCohen, 100 AD3d 919 [2012]). In any event, the record reveals that thedefendant's plea was entered knowingly, voluntarily, and intelligently (see People vHarris, 61 NY2d 9 [1983]).
By pleading guilty, the defendant forfeited appellate review of his claims ofineffective assistance of counsel that did not directly involve the plea bargaining processand sentence (see People v Petgen, 55 NY2d 529, 535 n 3 [1982]; People v Moshier, 110 AD3d832, 833 [2013]; People vPatterson, 106 AD3d 757 [2013]). Furthermore, the defendant's valid waiver ofhis right to appeal precludes appellate review of his contention that he was deprived ofthe effective assistance of counsel, except to the extent that the alleged ineffectiveassistance affected the voluntariness of his plea (see People v Young, 97 AD3d 771 [2012]; People v Wright, 95 AD3d1046, 1047 [2012]; Peoplev Gedin, 46 AD3d 701 [2007]). The defendant's claim of ineffective assistanceof counsel with respect to the plea bargaining process is based, in part, upon matterappearing on the record and, in part, on matter outside the record, and thus constitutes a "'mixed claim[ ]' of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011], quotingPeople v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Inthis case, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claimof ineffective assistance cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People vTaylor, 98 AD3d 593, 594 [2012]; People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109).[*2]
The defendant's valid waiver of his right toappeal precludes review of his contention that the sentence imposed was excessive (see People v Ramos, 7 NY3d737 [2006]; People vLopez, 6 NY3d 248, 257 [2006]; People v Muniz, 91 NY2d 570, 575[1998]). Rivera, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.