| People v Ayala |
| 2017 NY Slip Op 00477 [146 AD3d 966] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lazaro Ayala, Appellant. |
Michele Marte-Indzonka, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Freehill, J.), rendered November 10, 2015, convicting him of criminal possession of acontrolled substance in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid. The record doesnot sufficiently demonstrate that the defendant understood the concept of the right toappeal and fully appreciated the consequences of waiving that right (see generally People vBradshaw, 18 NY3d 257, 264-267 [2011]; People v Brown, 122 AD3d 133 [2014]). Among otherthings, the County Court did not clearly ascertain on the record that defense counseldiscussed the right to appeal with the defendant (cf. People v Sanders, 25 NY3d 337, 339-342 [2015]). Wenote that the County Court relied heavily upon the written appeal waiver form executedby the defendant. On this appeal, the People also rely heavily on the written waiver insupport of their argument that the purported appeal waiver was valid. However, thewritten waiver is not in the record and the People did not provide it. Under all thecircumstances, we conclude that the defendant did not knowingly, voluntarily, andintelligently waive his right to appeal (see People v Harris, 142 AD3d 557, 557 [2016]; People v Brown, 122 AD3d133 [2014]; cf. People vBryant, 28 NY3d 1094 [2016]; People v Page, 138 AD3d 1313, 1313-1314 [2016]; People v Pacheco, 138 AD3d1035, 1036 [2016]). Thus, the purported waiver does not preclude review of any ofthe defendant's claims.
The defendant's claim of ineffective assistance of counsel is based, in part, uponmatter appearing on the record and, in part, on matter outside the record, and thusconstitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 575 n 2 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (see People v Barber, 133AD3d 868, 872 [2015];People v Young, 97 AD3d 771 [2012]). Since the defendant's claim ofineffective assistance cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Barber, 133 [*2]AD3d at 872;People v Maxwell, 89 AD3d at 1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Chambers, J.P., Hall, Maltese and Barros, JJ., concur.