| People v Benson |
| 2018 NY Slip Op 05935 [164 AD3d 911] |
| August 29, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrea Benson, Appellant. |
Salvatore C. Adamo, New York, NY, for appellant.
Thomas P. Zugibe, District Attorney, New City, NY (Tina L. Guccione of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (WilliamA. Kelly, J.), rendered May 12, 2015, convicting her of murder in the second degree, upon herplea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that her plea of guilty was not entered knowingly, voluntarily, andintelligently is not preserved for appellate review because she did not move to vacate her plea orotherwise raise the issue before the Supreme Court (see CPL 470.05 [2]; People v Dancy, 156 AD3d 717[2017]; People v Crosby, 133 AD3d681 [2015]). In any event, the contention is without merit, as the record of the pleaproceedings demonstrates that the defendant's plea was knowingly, voluntarily, and intelligentlyentered (see People v Fiumefreddo, 82 NY2d 536 [1993]; People v Harris, 61NY2d 9 [1983]).
The defendant's purported waiver of her right to appeal was invalid because the SupremeCourt's "terse colloquy" at the plea allocution failed to sufficiently advise the defendant of thenature of her right to appeal (People vSalgado, 111 AD3d 859, 859 [2013]; see People v Nugent, 109 AD3d 625 [2013]), and thus, does notpreclude appellate review of her excessive sentence claim. However, the sentence imposed wasnot excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention that she was denied the effective assistance of counsel is based, inpart, on matter dehors the record and thus constitutes a "mixed claim" of ineffective assistance ofcounsel (see People v Crosby, 133AD3d 681 [2015]; People vWilliams, 120 AD3d 721, 723 [2014]; People v Maxwell, 89 AD3d 1108, 1109 [2011]). In this case, it isnot evident from the matter appearing on the record that the defendant was deprived of theeffective assistance of counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]). 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 Crosby, 133 AD3d at 682; People v Duren, 130 AD3d 842[2015]; People v Williams, 120 AD3d at 724; People v Addison, 107 AD3d 730, 732 [2013]; People v Freeman, 93 AD3d 805,806 [2012]). Leventhal, J.P., Cohen, Hinds-Radix and Iannacci, JJ., concur.