| People v Lincoln |
| 2015 NY Slip Op 00558 [124 AD3d 803] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jermal Lincoln, Appellant. |
John P. Savoca, Yorktown Heights, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered June 11, 2013, convicting him of criminal possession of a weapon inthe third degree and reckless endangerment in the first degree, upon his plea of guilty,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's valid waiver of his right to appeal (see People v Ramos, 7 NY3d737 [2006]; People vLopez, 6 NY3d 248 [2006]; People v Muniz, 91 NY2d 570, 575 [1998])precludes review of his challenge to the factual sufficiency of the plea allocution (see People v Ovalle, 112 AD3d971 [2013]; People vKnapp, 108 AD3d 641, 642 [2013]; People v Hardee, 84 AD3d 835 [2011]).
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]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]). In this case, it is not evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]; Peoplev Brown, 45 NY2d 852, 853-854 [1978]). Since the defendant's claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, aCPL 440.10 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). Mastro, J.P.,Chambers, Cohen and Barros, JJ., concur.