| People v Thorne |
| 2014 NY Slip Op 02807 [116 AD3d 988] |
| April 23, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jonathan Thorne, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan M. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered May 16, 2013, convicting him of attempted criminal sale of acontrolled substance in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
To the extent that the defendant's claim that his plea of guilty was not knowingly,voluntarily, or intelligently entered rests on matter outside the record on appeal, it maynot be reviewed on direct appeal (see People v Smith, 85 AD3d 1065 [2011]; People v Steven B., 81 AD3d843 [2011]; People vGriffith, 78 AD3d 1194 [2010]). To the extent that this claim is based on matterappearing on the record, it is not preserved for appellate review since the defendant didnot move to withdraw his plea (see People v Steven B., 81 AD3d at 843; People v Bunn, 79 AD3d1143 [2010]; People vNowell, 46 AD3d 707 [2007]). In any event, the claim is without merit.
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record and, thus, constitutes 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]). In this case, it is not evident fromthe matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistanceof counsel cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Dillon, J.P., Leventhal, Chambers and LaSalle, JJ., concur.