| People v Spencer |
| 2017 NY Slip Op 03020 [149 AD3d 983] |
| April 19, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darrell Spencer, Appellant. |
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Laurie Sapakoff and StevenBender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Everett,J.), rendered December 1, 2014, convicting him of attempted criminal possession of a weapon inthe second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although a claim that a plea of guilty was not voluntary survives a valid waiver of the rightto appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Lujan, 114 AD3d 963,964 [2014]), the defendant failed to preserve for appellate review his contention that his plea ofguilty was not knowing, voluntary, or intelligent, since he did not move to withdraw his plea onthis ground prior to the imposition of sentence (see CPL 220.60 [3]; People vClarke, 93 NY2d 904, 906 [1999]; People v Lopez, 71 NY2d 662, 665-666 [1988]).In any event, the record demonstrates that the defendant's plea was knowingly, voluntarily, andintelligently entered.
The defendant's valid waiver of his right to appeal precludes review of his challenge to thefactual sufficiency of the plea allocution (see People v Ovalle, 112 AD3d 971 [2013]; People v Knapp, 108 AD3d 641,642 [2013]; People v Hardee, 84AD3d 835 [2011]).
The defendant's claim that he was illegally sentenced as a predicate violent felony offendersurvives his valid waiver of the right to appeal (see People v Helmus, 125 AD3d 884 [2015]; People v DelCarpio, 101 AD3d746, 746-747 [2012]; People vIliff, 96 AD3d 974, 975 [2012]; People v Maglione, 305 AD2d 426 [2003]).However, the defendant's contention that his prior conviction did not qualify as a predicateviolent felony under applicable State law is unpreserved for appellate review (see CPL470.05 [2]). In any event, the defendant's prior conviction qualified as a predicate violent felony(see Penal Law § 70.04 [1] [b] [i], [iv], [v]). Moreover, contrary to thedefendant's contention, the record reveals that he was advised at the plea proceeding that hewould be sentenced as a predicate violent felony offender.
The defendant's claim that he was deprived of the right to the effective assistance of counselis based, in part, on matter appearing on the record and, in part, on matter outside the record,[*2]and thus, constitutes a "mixed claim of ineffective assistance"(People v Maxwell, 89 AD3d1108, 1109 [2011]; see People vEvans, 16 NY3d 571, 575 n 2 [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 Granger, 122 AD3d940, 942 [2014]; cf. People v Crump, 53 NY2d 824 [1981]; People v Brown,45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistance cannot be resolvedwithout reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109). Dillon, J.P., Chambers, Sgroi, Maltese and Barros, JJ.,concur.