| People v DeMicheli |
| 2015 NY Slip Op 04663 [129 AD3d 743] |
| June 3, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Stefano DeMicheli, Appellant. |
Robert Schuster, Mt. Kisco, N.Y. (John R. Lewis of counsel), for appellant.
Adam B. Levy, District Attorney, Carmel, N.Y. (David M. Bishop of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County(Reitz, J.), rendered January 31, 2014, convicting him of criminal sale of a controlledsubstance in the third degree (four counts), upon his plea of guilty, and sentencing him toa determinate term of imprisonment of 10 years on each count, to run consecutively toeach other, plus a period of three years of postrelease supervision.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by providing that the terms of imprisonment shall run concurrently with eachother; as so modified, the judgment is affirmed.
The defendant pleaded guilty to four counts of criminal sale of a controlled substancein the third degree. He was 24 years old at the time of the plea. The defendant admittedthat he sold controlled substances on four occasions between October and November2011, for a combined total sum of $360. After failing to comply with all of the terms ofhis plea agreement, which required, inter alia, participation in a drug treatment program,the defendant, who had a history of substance abuse, was subsequently sentenced to adeterminate term of 10 years imprisonment on each count. The County Court directedthat the four terms of imprisonment run consecutively to each other, for a total aggregateterm of 40 years of imprisonment.
The People contend that this Court is precluded from reviewing many of thecontentions raised by the defendant on this appeal, since he validly waived his right toappeal during the plea proceeding. Contrary to the People's contention, however, thedefendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see generally People vBradshaw, 18 NY3d 257, 265 [2011]; People v Brown, 122 AD3d 133, 140 [2014]).
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 [*2]of ineffective assistance of counsel cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). However, thecontentions raised in the defendant's motion pursuant to CPL 440.10 are not properlybefore this Court on the appeal from the judgment inasmuch as the defendant did notseek leave to appeal from the order denying that motion (see People v Washington, 45AD3d 880 [2007]; People vWynn, 40 AD3d 893 [2007]).
Contrary to the defendant's contention, the County Court did not improvidentlyexercise its discretion in denying his request for an adjournment prior to sentencing (see People v Struss, 79 AD3d773, 774 [2010]; People vMcRae, 62 AD3d 723, 724 [2009]).
However, the sentence imposed was excessive to the extent that the County Courtdirected that the four determinate terms run consecutively to each other. Accordingly, wemodify the judgment as a matter of discretion in the interest of justice by providing thatthe terms of imprisonment imposed upon the defendant's conviction of each of the fourcounts of criminal sale of a controlled substance in the third degree shall run concurrentlywith each other. Hall, J.P., Sgroi, Miller and Hinds-Radix, JJ., concur.