| People v Anderson |
| 2017 NY Slip Op 02667 [149 AD3d 766] |
| April 5, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Allan Anderson, Appellant. |
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County, (Berry, J.),rendered February 22, 2013, convicting him of assault in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid and, thus, does notpreclude review of any of his claims (seegenerally People v Lopez, 6 NY3d 248, 256 [2006]; People v Brown, 122 AD3d 133, 140 [2014]).
Where a "defendant's factual recitation negates an essential element of the crime pleaded toor casts significant doubt on the defendant's guilt, the court may not accept the plea withoutfurther inquiry" (People v Mead, 27AD3d 767, 767 [2006]; see Peoplev Lebron, 140 AD3d 790, 791 [2016]; People v Alonzo, 90 AD3d 1065 [2011]). Although the defendantcontends that he negated an essential element of assault in the second degree (Penal Law§ 120.05 [3]) during his plea allocution, the County Court's further inquiry into thecircumstances underlying the crime established that the defendant's plea was knowingly,voluntarily, and intelligently entered (see People v Lebron, 140 AD3d at 791; Peoplev Mead, 27 AD3d at 767; see alsoPeople v Alonzo, 90 AD3d 1065 [2011]).
The defendant's challenge to the validity of his waiver of indictment is not forfeited by hisplea of guilty and does not need to be preserved (see People v Boston, 75 NY2d 585, 589[1990]; People v Yunga, 122 AD3d951, 951 [2014]). However, the defendant's contention that his waiver of indictment wasinvalid is without merit. CPL 195.10 (1) provides, in relevant part: "A defendant may waiveindictment and consent to be prosecuted by superior court information when: (a) a local criminalcourt has held the defendant for the action of a grand jury." "Being so 'held' for the action of aGrand Jury involves the filing of a felony complaint on which defendant has been arraigned and afinding after a preliminary hearing (unless waived by defendant) that reasonable cause exists tobelieve that defendant committed a felony" (People v Barber, 280 AD2d 691, 692[2001]). Here, the defendant acknowledged receipt of the felony complaint and waived his rightto a preliminary hearing. Further, when allocuted by the prosecutor regarding his waiver ofindictment, the defendant explicitly acknowledged that he understood that he had been held forthe action of the grand jury (see People v Yunga, 122 AD3d at 951; see also People v Davenport, 106AD3d 1197 [2013]). Accordingly, the defendant's contention that his waiver of indictmentwas invalid is without merit.
The defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel 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 AD3d 1108,1109 [2011]). In this case, it is not evident from the matter appearing on the record that thedefendant was deprived of the effective assistance of counsel (see People v Addison, 107 AD3d730, 732 [2013]; cf. People v Crump, 53 NY2d 824 [1981]; People v Brown,45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Addison, 107AD3d at 732; People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's remaining contentions are without merit. Dillon, J.P., Cohen, Duffy andConnolly, JJ., concur.