| People v Martinez |
| 2017 NY Slip Op 08392 [155 AD3d 1063] |
| November 29, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Angel Martinez, Appellant. |
Del Atwell, East Hampton, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered October 28, 2014, convicting him of attempted burglary in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waivedhis right to appeal (see People vSanders, 25 NY3d 337, 341-342 [2015]; People v Jessamy, 137 AD3d 1056, 1056 [2016]). The defendant'svalid waiver of his right to appeal precludes appellate review of his challenge to the factualsufficiency of the plea allocution (seePeople v Flowers, 152 AD3d 791 [2017]; People v Smith, 146 AD3d 904, 904-905 [2017]).
The defendant's contention that his plea was not knowing, voluntary, and intelligent surviveshis valid appeal waiver (see People v Smith, 146 AD3d at 904-905; People v Magnotta, 137 AD3d1303 [2016]). However, contrary to the defendant's contention, his plea of guilty was notcoerced by the County Court's remarks informing him of his possible sentence exposure were heto proceed to trial. Such remarks are informative rather than coercive (see People v Foster, 99 AD3d 812,812-813 [2012]; People v Strong, 80AD3d 717, 718 [2011]; People vBravo, 72 AD3d 697, 698 [2010]).
By pleading guilty, the defendant forfeited appellate review of his claims of ineffectiveassistance of counsel that did not directly involve the plea negotiation process and sentence (see People v Fakhoury, 103 AD3d664 [2013]; People v Soria, 99AD3d 1027, 1027-1028 [2012]). Moreover, the defendant's valid waiver of his right toappeal limits this Court's review to issues regarding the voluntariness of the plea (see People v Flowers, 152 AD3d791 [2017]; People v Mejia,112 AD3d 855, 856 [2013]). To the extent that the defendant's contentions are related to thevoluntariness of the plea, his contentions involve a "mixed claim" of ineffective assistance thatrequires reference to matters outside the record (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571,575 n 2 [2011]; People v Thorne,116 AD3d 988 [2014]; People vFakhoury, 103 AD3d 664 [2013]). It is not evident based on the record that thedefendant was deprived of the effective assistance of counsel (cf. People v Crump, 53NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Therefore, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Thorne, 116 AD3d988 [2014]; [*2]People v Fakhoury, 103 AD3d at664).
The defendant's valid waiver of his right to appeal precludes review of his contention that thesentence imposed was excessive (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Rankine, 153 AD3d 732 [2017]; People v Flowers, 152 AD3d 791[2017]).
The defendant's remaining contentions are without merit. Balkin, J.P., Leventhal, Austin andIannacci, JJ., concur.