| People v Donovan |
| 2015 NY Slip Op 07990 [133 AD3d 615] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Donovan, Appellant. |
Salvatore C. Adamo, New York, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Cohen, J.), rendered November 8, 2013, convicting him of grand larceny in the fourthdegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea was not knowingly, voluntarily, orintelligently entered because it was affected by his attorney's failure to make any pretrialmotion to suppress evidence and because the County Court did not conduct a proper pleaallocution is not preserved for appellate review, since he did not move to withdraw hisplea or otherwise raise these issues in the County Court (see People v Williams, 129AD3d 1000 [2015]; Peoplev King, 115 AD3d 986 [2014]; People v Jackson, 114 AD3d 807 [2014]). In any event, therecord reveals that the defendant's plea was knowingly, voluntarily, and intelligentlyentered (see People v Harris, 61 NY2d 9, 16 [1983]; People v Nixon, 21NY2d 338, 353 [1967]).
The defendant's contention that his plea was not knowingly, voluntarily, orintelligently entered because defense counsel failed to discuss the risks and benefits ofpursuing a motion to suppress evidence or otherwise advise and consult with him rests onmatter outside the record on appeal, and may not be reviewed on direct appeal (see People v Thorne, 116AD3d 988 [2014]; People vSmith, 85 AD3d 1065 [2011]; People v Griffith, 78 AD3d 1194, 1195 [2010]).
The defendant's contention that defense counsel was ineffective because he failed tomake a pretrial suppression motion is not properly before this Court, since, by pleadingguilty, the defendant forfeited appellate review of his claims of ineffective assistance ofcounsel that did not directly involve the plea negotiation process and sentence (seePeople v Petgen, 55 NY2d 529, 535 n 3 [1982]; People v Moshier, 110 AD3d 832, 833 [2013]; People v Patterson, 106 AD3d757 [2013]; People vFakhoury, 103 AD3d 664, 664 [2013]).
To the extent that the defendant's claim of ineffective assistance of counsel doesrelate to the voluntariness of his plea, his claim is based, in part, on matter appearing onthe record [*2]and, in part, on matter outside the record,and thus, constitutes a "mixed claim of ineffective assistance" of counsel (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Borges, 130 AD3d 1057, 1058 [2015]). In this case, it is not evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel as it relates to the voluntariness of his plea (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Sincethe defendant's claim of ineffective assistance cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing 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]). Leventhal,J.P., Austin, Roman, Miller and Barros, JJ., concur.