| People v Amay |
| 2017 NY Slip Op 09145 [156 AD3d 895] |
| December 27, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Paul Amay, Appellant. |
Neal D. Futerfas, White Plains, NY, for appellant.
Robert Tendy, District Attorney, Carmel, NY (Melissa Lynch of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County (Reitz, J.),rendered November 15, 2011, convicting him of murder in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that he was deprived of the effective assistance of counsel, except to the extent thatthe alleged ineffective assistance affected the voluntariness of his plea (see People v Thompson, 150 AD3d1156, 1157 [2017]; People vBrown, 116 AD3d 1062, 1062-1063 [2014]). To the extent that the defendant contendsthat counsel's alleged ineffectiveness affected the voluntariness of his plea, his contention isbased, in part, on matter on the record and, in part, on matter outside the record, and thusconstitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571,575 n 2 [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 (cf. People v Crump, 53NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claim ofineffective assistance cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d805 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's present challenge to the voluntariness of his plea of guilty, based on hisrecitation of the facts underlying the crime of murder in the second degree, is unpreserved forappellate review, since further inquiry into the facts was conducted and the defendant did notchallenge this remedial action (see People v Lopez, 71 NY2d 662, 667-668 [1988]; People v Lovick, 127 AD3d 1108,1108-1109 [2015]). In any event, his challenge is without merit.
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that the sentence imposed was excessive (see People v Lopez, 6 NY3d 248, 255-256 [2006]). Dillon, J.P.,Leventhal, Hinds-Radix and LaSalle, JJ., concur.