| People v Bird |
| 2018 NY Slip Op 06105 [164 AD3d 1357] |
| September 19, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan Bird, Appellant. |
Mark Diamond, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy of counsel; Matthew C.Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (David P.Sullivan, J.), rendered April 25, 2016, convicting him of robbery in the second degree and assaultin the second degree, 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, 341-342 [2015]; People v Bryant, 159 AD3d 715,716 [2018]).
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligentsurvives his valid waiver of the right to appeal (see People v Magnotta, 137 AD3d 1303 [2016]). However, therecord reflects that the defendant's plea of guilty was knowingly, voluntarily, and intelligentlyentered (see People v Seeber, 4NY3d 780, 781 [2005]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
The defendant's claim that he was deprived of the constitutional right to the effectiveassistance of counsel, which affected the voluntariness of his plea, is based, in part, on matterappearing on the record and, in part, on matter outside the record, and thus constitutes a "mixedclaim" of ineffective assistance (Peoplev Maxwell, 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 of counsel(cf. People v Crump, 53 NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852,853 [1978]). Since the defendant's claim of ineffective assistance cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing the claim in its entirety (seePeople v Carter, 151 AD3d 877, 878 [2017]; People v Cunningham, 103 AD3d 916, 916-917 [2013]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontentions regarding the propriety of the Supreme Court's suppression ruling, the propriety ofthe procedure used to adjudicate him a second violent felony offender, and the allegedexcessiveness of his sentence (seePeople v Bryant, 28 NY3d 1094, 1096 [2016]; People v Sanders, 25 NY3d at341-342; People v Lopez, 6 NY3d248, 257 [2006]; People v Kemp, 94 NY2d 831, 833 [1999]; People vWilliams, 36 NY2d [*2]829, 830 [1975]; People v Darrow, 161 AD3d 1000[2018]; People v Rohs, 140 AD3d800 [2016]). Mastro, J.P., Chambers, Sgroi and Maltese, JJ., concur.