| People v Upson |
| 2015 NY Slip Op 09445 [134 AD3d 1058] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jamel Upson, Appellant. |
Christine Moccia, Chappaqua, NY, for appellant.
Janet DiFiore, District Attorney, White Plains, NY (Jennifer Spencer and LaurieSapakoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered January 8, 2014, convicting him of attempted murder in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he knowingly, voluntarily, and intelligentlywaived his right to appeal (seePeople v Sanders, 25 NY3d 337, 341-342 [2015]; People v Lopez, 6 NY3d248, 256 [2006]). The defendant's valid waiver of his right to appeal precludesappellate review of his contention that he was deprived of the effective assistance ofcounsel except to the extent that the alleged ineffective assistance affected thevoluntariness of his plea (seePeople v Young, 97 AD3d 771 [2012]; People v Watt, 82 AD3d 912 [2011]). Insofar as thedefendant contends that defense counsel's conduct affected the voluntariness of his plea,the claim is based, in part, on matter appearing on the record and, in part, on matteroutside the record and, thus, constitutes a "mixed claim of ineffective assistance" (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]).Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the claimin its entirety (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109).
Moreover, the record reflects that the defendant knowingly, voluntarily, andintelligently entered his plea of guilty (see People v Fiumefreddo, 82 NY2d 536,543 [1993]; People v Harris, 61 NY2d 9, 16-17 [1983]). The defendant's postpleaassertions regarding his innocence contradicted the admissions made under oath at hisplea allocution, and were insufficient to warrant vacatur of his plea or a hearing (see People v Martinez, 129AD3d 1106, 1107 [2015]; People v Dazzo, 92 AD3d 796 [2012]). Thus, the SupremeCourt properly denied, without a hearing, the defendant's motion to withdraw his plea ofguilty (see CPL 220.60 [3]). Leventhal, J.P., Austin, Roman, Miller and Barros,JJ., concur.