| People v Williams |
| 2017 NY Slip Op 09183 [156 AD3d 920] |
| December 27, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Siptah Williams, Appellant. |
Neal D. Futerfas, White Plains, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.),rendered July 1, 2014, convicting him of criminal possession of a controlled substance in thefourth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was involuntary because he had a defense isunpreserved for appellate review, since he did not move to withdraw his plea on this basis priorto sentencing (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Rovinsky, 135 AD3d969, 970 [2016]; People vBanner, 122 AD3d 641 [2014]). Contrary to the defendant's contention, the exception tothe preservation requirement (see People v Lopez, 71 NY2d at 666) does not apply herebecause the defendant's allocution did not clearly cast significant doubt on his guilt, negate anessential element of the crime, or call into question the voluntariness of the plea (see People v Delarosa, 104 AD3d956 [2013]; People v Colston,68 AD3d 1130 [2009]; People vNash, 38 AD3d 684 [2007]). In any event, the facts admitted in the allocution weresufficient to support the defendant's plea of guilty (see People v Seeber, 4 NY3d 780, 781 [2005]; People vColston, 68 AD3d at 1131; People vSanabria, 52 AD3d 743, 744 [2008]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record and,thus, constitutes 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]). Accordingly, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Although the defendantmade a postconviction motion to vacate the judgment pursuant to CPL 440.10, the issues raisedin that motion are not properly before us, as he was denied leave to appeal from the orderdenying that motion (see People vDunaway, 134 AD3d 952, 954 [2015]; People v Coleman, 125 AD3d 879, 881 [2015]; People vDeLuca, 45 AD3d [*2]777 [2007]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Balkin, J.P., Miller, Duffy, LaSalle and Brathwaite Nelson, JJ., concur.