| People v Morocho |
| 2015 NY Slip Op 05502 [129 AD3d 1107] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Morocho, Appellant. |
Marianne Karas, Thornwood, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Kevin C. King ofcounsel; Gregory J. Klubok on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered February 26, 2014, convicting him of grand larceny in the thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his plea of guilty was not knowingly, voluntarily, andintelligently entered. "Whether a plea was knowing, intelligent and voluntary isdependent upon a number of factors 'including the nature and terms of the agreement, thereasonableness of the bargain, and the age and experience of the accused' "(People v Garcia, 92 NY2d 869, 870 [1998], quoting People v Hidalgo,91 NY2d 733, 736 [1998]). Here, the defendant, who had the assistance of an attorney,knowingly and voluntarily admitted his guilt after a thorough and complete pleaallocution. The defendant acknowledged that he had enough time to completely discussthe facts of his case with his attorney before pleading guilty. The defendantacknowledged that he understood that, by pleading guilty, he was forfeiting his rights toa trial by jury, to present witnesses on his own behalf, to remain silent, and to be provenguilty beyond a reasonable doubt. The defendant indicated that no one had forced orcoerced him to enter the plea of guilty, and sufficiently allocuted to the facts of thesubject crime. Further, the defendant was fully apprised of the consequences of his plea.The Supreme Court expressly advised the defendant, who was not a United Statescitizen, that his plea of guilty may result in his deportation or denial of naturalization(see CPL 220.50 [7]; People v Peque, 22 NY3d 168, 197 [2013]; People v Taveras, 123 AD3d745 [2014]). In addition, the defendant's assertion that the plea proceeding wasrushed and perfunctory is unsupported by the record (see People v Pelaez, 100 AD3d 803, 804 [2012]; People v Gordon, 98 AD3d1230 [2012]). Accordingly, contrary to the defendant's contention, his plea of guiltywas knowingly, voluntarily, and intelligently entered (see People v Tyrell, 22 NY3d359, 365 [2013]; People v Fiumefreddo, 82 NY2d 536, 543 [1993];People v Harris, 61 NY2d 9, 21-22 [1983]; People v Jackson, 114 AD3d 807 [2014]).
The defendant's contention that he was not afforded 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 [*2]appearing on the record that thedefendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Sincethe defendant's claim of ineffective assistance of counsel cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109;People v Rohlehr, 87 AD3d 603, 604 [2011]). Balkin, J.P., Austin, Duffy andBarros, JJ., concur.