| People v Miller |
| 2018 NY Slip Op 07757 [166 AD3d 812] |
| November 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daniel Miller, Appellant. |
Daniel Miller, Stormville, NY, appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and HildaMortensen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Angelo Delligatti, J.), rendered June 16, 2015, convicting him of criminal sexual act inthe first degree, kidnapping in the second degree, attempted criminal sexual act in thefirst degree (two counts), sexual abuse in the first degree (three counts), and facilitating asex offense with a controlled substance (four counts), upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court's oral colloquy with himregarding the waiver of the right to appeal established that the defendant knowingly,voluntarily, and intelligently waived his right to appeal (see People v Lopez, 6 NY3d248 [2006]; People v Callahan, 80 NY2d 273 [1992]; People vSeaberg, 74 NY2d 1 [1989]; People v Stiles, 143 AD3d 747 [2016]; People v Romero-Flores, 128AD3d 1102 [2015]; Peoplev McRae, 123 AD3d 848, 848-849 [2014]).
The defendant contends that his plea was not knowingly, voluntarily, andintelligently entered because the Supreme Court did not adequately inform him of theconsequences that his plea would have on a determination pursuant to the Sex OffenderRegistration Act (see Correction Law art 6-C [hereinafter SORA]) or the SexOffender Management and Treatment Act (Mental Hygiene Law § 10.01et seq., as added by L 2007, ch 7 [hereinafter SOMTA]). While these contentionssurvive the defendant's valid waiver of the right to appeal, they are unpreserved forappellate review, since he did not move to withdraw his plea or otherwise raise theseissues before the court (see CPL 470.05 [2]; People v Christian, 156 AD3d 716 [2017]; People v Madden, 112 AD3d740, 741 [2013]).
The defendant's contention that he was deprived of the effective assistance ofcounsel due to defense counsel's alleged failure to adequately advise him of all ofSORA's and SOMTA's ramifications is based, in part, on matter outside the record and,thus, constitutes a mixed claim of ineffective assistance (see People v Maxwell, 89AD3d 1108, 1109 [2011]). In this case, it is not evident from the matter appearingon the record that the defendant was deprived of the effective assistance of counsel (see People v Hili, 158 AD3d647, 648 [2018]). Since the defendant's claim of ineffective assistance of counselcannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see Peoplev Hili, [*2]158 AD3d at 648; People v Freeman, 93 AD3d805, 806 [2012]).
The defendant's argument that Penal Law § 70.45 is unconstitutional isforeclosed by his valid waiver of the right to appeal (see People v Fisher, 121 AD3d 1013 [2014]).
By pleading guilty, the defendant forfeited appellate review of his contention that hiskidnapping conviction must be dismissed pursuant to the merger doctrine on the groundthat the kidnapping conviction was a substantive part of the charged sex offenses and thecharges of facilitating a sex offense with a controlled substance (see People v Hanley, 85 AD3d659 [2011]; People v Brown, 156 AD2d 204 [1989]). Rivera, J.P.,Leventhal, Hinds-Radix and Brathwaite Nelson, JJ., concur.