| People v Worthy |
| 2016 NY Slip Op 03028 [138 AD3d 1042] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael J. Worthy, Appellant. |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Sarah S. Rabinowitz and RebeccaL. Abensur of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Quinn, J.), rendered September 4, 2013, convicting him of attempted criminalpossession of a weapon in the second degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
By pleading guilty, the defendant forfeited appellate review of his claim ofineffective assistance of counsel that did not directly involve the plea negotiation process(see People v Zeigler, 128AD3d 737, 738 [2015]; People v McGuire, 122 AD3d 947, 948 [2014]).Furthermore, the defendant's waiver of his right to appeal precludes appellate review ofhis contention that he was deprived of the effective assistance of counsel, except to theextent that the alleged ineffective assistance affected the voluntariness of his plea (see People v Tarrant, 114AD3d 710, 711 [2014]; People v Gomez, 114 AD3d 701, 702 [2014]). To theextent that the defendant contends that his counsel's conduct affected the voluntariness ofhis plea (see People vDevino, 110 AD3d 1146, 1147 [2013]), his contention is based, in part, onmatter appearing on the record and, in part, upon matter appearing outside the 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 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistancecannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Haywood, 122AD3d 769, 770 [2014]; People v Crawford, 106 AD3d 832, 834 [2013]).
The defendant's claim that his constitutional right to a speedy trial was violatedsurvives both the entry of his plea of guilty and the waiver of his right to appeal (seePeople v Callahan, 80 NY2d 273, 280 [1992]; People v Franco, 104 AD3d 790, 791 [2013]; People vGrandberry, 223 AD2d 723 [1996]). However, since the issue is raised for the firsttime on appeal, the defendant's contention is unpreserved for appellate review (seePeople v Jordan, 62 NY2d 825 [1984]; People v Card, 107 AD3d 820 [2013]; People v Davison, 92 AD3d691, 692 [2012]; People v Sease, 305 AD2d 700, 701 [2003]). In any event,review of this constitutional issue is precluded by the lack of an adequate record, whichwas [*2]the defendant's burden to provide (see Peoplev Card, 107 AD3d at 820;People v Smith, 48 AD3d 1095, 1096 [2008]; People v James, 188AD2d 296, 296 [1992]). Rivera, J.P., Dillon, Chambers and Dickerson, JJ., concur.