| People v Leach |
| 2014 NY Slip Op 01464 [115 AD3d 677] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Raymond Leach, Appellant. |
—[*1] David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz andAndrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Berry, J.), rendered July 27, 2011, convicting him of attempted grand larceny in the thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
A waiver of the right to appeal is enforceable where, as here, it is voluntary,knowing, and intelligent (see People v Callahan, 80 NY2d 273, 280 [1992];People v Seaberg, 74 NY2d 1, 11 [1989]; People v Finn, 56 AD3d 490 [2008]).
A defendant cannot waive, as part of a plea bargain, a question as to his competencyto stand trial (see People v Allen, 86 NY2d 599, 602 [1995]; People vArmlin, 37 NY2d 167, 172 [1975]). Similarly, a challenge to a defendant'scompetency remains outside the ambit of a valid appeal waiver (see People v Lopez, 6 NY3d248, 255 [2006]; People v Seaberg, 74 NY2d at 9). Here, however, thedefendant's contention that his plea was involuntary because he was mentallyincompetent to understand the nature of the charges against him is belied by the record.The defendant's most recent psychological evaluation concluded that the defendant wasmentally competent, and defense counsel stated that he did not wish to controvert thatevaluation. Moreover, the defendant's responses during the plea and sentenceproceedings were appropriate and did not indicate that he was incapacitated (see People v Batista, 82 AD3d1113, 1114 [2011]; Peoplev Gallo, 73 AD3d 804, 805 [2010]; People v Pryor, 11 AD3d 565, 566 [2004]; People vHollis, 204 AD2d 569 [1994]).
The original charge under count one of the indictment had been reduced by a priororder of the County Court from grand larceny in the third degree to attempted grandlarceny in the third degree on the ground that the evidence was legally insufficient toestablish the offense charged. The People neither filed a reduced indictment norexercised any of their other options pursuant to CPL 210.20 (6) within 30 days followingthe entry of the order. As part of a negotiated plea bargain, the defendant pleaded guiltyto count one as reduced by the County Court. Contrary to the defendant's contention inhis pro se supplemental brief, at the time of the plea, the reduced "charge. . . remained viable after expiration of the 30-day stay" (People v Flock, 30 AD3d611, 612 [2006]; see People v Jackson, 87 NY2d 782, 784 [1996]).[*2]
The defendant's claim, made in his pro sesupplemental brief, that he was deprived of his constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, onmatter outside the record and, thus, constitutes a " 'mixed claim[ ]' " of ineffectiveassistance (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People 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, 53NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant'sclaim of ineffective assistance of counsel cannot be resolved without reference to matteroutside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see Peoplev Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109; People v Rohlehr, 87AD3d 603, 604 [2011]).
The defendant's valid waiver of his right to appeal precludes review of his contentionthat the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257, 264-267 [2011];People v Lopez, 6 NY3d at 255-256).
By pleading guilty, the defendant forfeited his right to seek review of any allegedBrady violation (see Brady v Maryland, 373 US 83 [1963]; People v Huggins, 105 AD3d760, 761 [2013]; People vKidd, 100 AD3d 779 [2012]). Rivera, J.P., Lott, Roman and Hinds-Radix, JJ.,concur.