| People v Crosby |
| 2015 NY Slip Op 08185 [133 AD3d 681] |
| November 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andre Crosby, Appellant. |
Salvatore C. Adamo, New York, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County(Kelly, J.), rendered December 13, 2013, convicting him of grand larceny in the thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowingly or voluntarilyentered is not preserved for appellate review because he did not move to vacate his pleaor otherwise raise the issue before the Supreme Court (see CPL 470.05 [2]; People v Jackson, 114 AD3d807 [2014]; People vFolger, 110 AD3d 736 [2013]). In any event, the contention is without merit, asthe record of the plea proceedings reflects that the defendant's plea of guilty wasknowingly, voluntarily, and intelligently entered (see People v Fiumefreddo, 82NY2d 536, 543 [1993]; People v Harris, 61 NY2d 9, 16-17 [1983]; People v Soria, 99 AD3d1027 [2012]; People vGibson, 95 AD3d 1033, 1033-1034 [2012]).
The defendant's purported waiver of his right to appeal was invalid (see People v George, 131AD3d 623 [2015]; People vBrown, 122 AD3d 133, 142 [2014]; see generally People v Sanders, 25 NY3d 337 [2015]; People v Bradshaw, 18 NY3d257, 264-267 [2011]). However, the defendant's claim that he was deprived of hisright to the effective assistance of counsel is based, in part, on matter appearing on therecord and, in part, on matter outside the record, and thus constitutes a "mixed claim" ofineffective assistance (People vMaxwell, 89 AD3d 1108, 1109 [2011]). In this case, it is not evident from thematter appearing on the record that the defendant was deprived of the effective assistanceof counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]). Since the defendant'sclaim of ineffective assistance of counsel cannot be resolved without reference to matteroutside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see Peoplev Duren, 130 AD3d 842 [2015]; People v Williams, 120 AD3d 721, 724 [2014]; People v Addison, 107 AD3d730, 732 [2013]; People vFreeman, 93 AD3d 805, 806 [2012]).
The defendant's claim that he was deprived of an opportunity to address the SupremeCourt at the time of his sentencing, in violation of CPL 380.50, is unpreserved forappellate review (see People v Green, 54 NY2d 878, 880 [1981]; People v McGinn, 96 AD3d977, 978 [2012]; People v McCant, [*2]79AD3d 908 [2010]). In any event, the contention is without merit, as the record indicatesthat the court substantially complied with the requirements of the statute (see People vMcClain, 35 NY2d 483, 491-492 [1974]; People v McCant, 79 AD3d at 908;People v Lopez, 250 AD2d 707 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.