| People v Thompson |
| 2017 NY Slip Op 04151 [150 AD3d 1156] |
| May 24, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Antwan Thompson, Appellant. |
Seymour W. James, Jr., New York, NY (Natalie Rea of counsel), for appellant, and appellantpro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan Dennehy,Michael L. Brenner, and Thomas M. Ross of counsel; Gregory Musso on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donnelly,J.), rendered June 24, 2013, convicting him of robbery in the third degree (four counts), upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Sanders, 25 NY3d337, 341-342 [2015]; People vLopez, 6 NY3d 248, 256-257 [2006]). The defendant's valid waiver of his right toappeal precludes review of his challenge to the severity of the sentence (see People vLopez, 6 NY3d at 256).
The defendant's contention that the Supreme Court erred in determining that it did not havethe authority at the time of sentencing to defer payment of the mandatory surcharge imposedpursuant to CPL 60.35 survives his waiver of the right to appeal (see People v Quishana M., 50 AD3d1513 [2008]). However, his contention is without merit (see People v Jones, 26 NY3d 730 [2016]).
The defendant's waiver of his right to appeal precludes appellate review of his claim, raisedin his pro se supplemental brief, that he received ineffective assistance of counsel, except to theextent that counsel's alleged ineffective assistance affected the voluntariness of his plea (see People v Weston, 145 AD3d746, 747 [2016]). To the extent that the defendant contends that counsel's allegedineffectiveness affected the voluntariness of his plea, his contention is based, in part, on matteron the record and, in part, on matter outside the record, and thus constitutes a "mixed claim" ofineffective assistance (People vMaxwell, 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 Leverich, 139 AD3d756 [2016]). 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 [*2]Leverich, 139 AD3d at 757; People v Maxwell, 89AD3d at 1109).
The defendant contends in his pro se supplemental brief that his arraignment was undulydelayed. While this contention survives his plea of guilty and his waiver of the right to appeal, itis not preserved for appellate review (see People v Thomas, 148 AD3d 734 [2017]; People v Archie, 116 AD3d 1165[2014]), and we decline to review it in the exercise of our interest of justice jurisdiction.
The defendant's contention in his pro se supplemental brief that the sentence imposed wasillegal survives his plea of guilty and his waiver of the right to appeal (see People vFrazier, 228 AD2d 171 [1996]). However, his contention is without merit (see People v Rizzo, 142 AD3d1187 [2016]).
The defendant's contention in his pro se supplemental brief that the record on appeal shouldbe enlarged to include certain motions pursuant to CPL 440.10 and 440.20 is not properly beforeus.
The remaining contentions raised in the defendant's pro se supplemental brief are based onmatter dehors the record and, thus, cannot be reviewed on direct appeal (see People v Thompson, 110 AD3d1014 [2013]; People v Holland,44 AD3d 874 [2007]). Dillon, J.P., Cohen, Maltese and Duffy, JJ., concur.