| People v Hutter |
| 2017 NY Slip Op 07141 [154 AD3d 776] |
| October 11, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven W. Hutter, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant, and appellantpro se.
Thomas J. Spota, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Collins, J.),rendered August 20, 2014, convicting him of burglary in the first degree (two counts), burglary inthe second degree (three counts), assault in the second degree (two counts), criminal mischief inthe third degree, criminal mischief in the fourth degree, unlawful imprisonment in the seconddegree, and petit larceny, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly,voluntarily, and intelligently waived his right to appeal (see People v Sanders, 25 NY3d 337 [2015]). The defendant's validwaiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiencyof his plea allocution (see People vThompson, 143 AD3d 1007 [2016]; People v Pinero, 138 AD3d 763, 764 [2016]; People v Devodier, 102 AD3d 884[2013]).
The defendant's contention that his plea was not knowing, voluntary, and intelligent surviveshis valid appeal waiver (see People vMagnotta, 137 AD3d 1303 [2016]). However, the defendant failed to preserve thiscontention for appellate review, since he did not move to vacate his plea or otherwise raise thisissue before the County Court (see People v Clarke, 93 NY2d 904, 906 [1999]; People v Morgado, 144 AD3d 709,710 [2016]). In any event, the defendant's plea of guilty was knowingly, voluntarily, andintelligently entered (see People vSeeber, 4 NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 543[1993]).
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 [*2]of counsel (see People v Leverich, 139 AD3d 756 [2016]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety (see People v Leverich, 139 AD3d at 757; People v Maxwell,89 AD3d at 1109).
Further, the defendant's valid waiver of his right to appeal precludes review of his contentionthat the sentence was excessive (seePeople v Lopez, 6 NY3d 248, 255, 257 [2006]; People v Callahan, 80 NY2d273, 281 [1992]; People v Seaberg, 74 NY2d 1, 10 [1989]).
The defendant's valid waiver of his right to appeal precludes review of the remainingcontention raised in his pro se supplemental brief (see People v Lopez, 6 NY3d at 256; People v Sanders, 112 AD3d 748[2013], affd 25 NY3d 337 [2015]). Balkin, J.P., Austin, Sgroi and LaSalle, JJ.,concur.