| People v Sanders |
| 2017 NY Slip Op 01719 [148 AD3d 846] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marlon Sanders, Appellant. |
Lynn W. L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered August 25, 2010, convicting him of manslaughter in the first degree, upon his pleaof guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's claim of ineffective assistance of counsel is based, in part, upon matterappearing on the record and, in part, on matter outside the record, and thus constitutes a "mixedclaim" of ineffective assistance (Peoplev Maxwell, 89 AD3d 1108, 1109 [2011]). In this case, it is not evident from the matterappearing on the record that the defendant was deprived of the effective assistance of counsel (see People v Marryshow, 135 AD3d964, 965 [2016]; cf. People v Crump, 53 NY2d 824, 825 [1981]; People vBrown, 45 NY2d 852 [1978]). Accordingly, a CPL 440.10 proceeding is the appropriateforum for reviewing the defendant's claim in its entirety (see People v Marryshow, 135AD3d at 965; People v Maxwell, 89 AD3d at 1109; cf. People v Maldonado, 116 AD3d 980 [2014]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that the sentence imposed was excessive (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Palladino, 140 AD3d1194, 1195 [2016]; People vEdmunson, 109 AD3d 621, 622 [2013]; People v Ropiza, 100 AD3d 935, 936 [2012]). Mastro, J.P.,Chambers, Maltese and Duffy, JJ., concur.