| People v Joseph |
| 2018 NY Slip Op 08506 [167 AD3d 776] |
| December 12, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Brian Joseph, Appellant. |
Judah Maltz, Kew Gardens, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (W. Thomas Hughes and AmandaManning of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J.Berkowitz, J., at plea; Christopher G. Quinn, J., at sentencing), rendered April 29, 2015,convicting him of robbery in the first degree (seven counts), criminal possession of a weapon inthe third degree (six counts), criminal possession of stolen property in the fourth degree, andcriminal possession of a weapon in the fourth degree, upon his plea of guilty, and imposingsentence upon his adjudication as a second violent felony offender.
Ordered that the judgment is modified, on the law, by vacating the defendant's adjudicationas a second violent felony offender with respect to his convictions of counts one and two of theindictment; as so modified, 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 [2015]). "By waiving the rightto appeal in connection with a negotiated plea and sentence, a defendant agrees to end theproceedings entirely at the time of sentencing and to accept as reasonable the sentence imposed"(People v Lopez, 6 NY3d 248,255 [2006]). Therefore, the defendant's valid waiver of his right to appeal precludes review of hiscontention that the sentence imposed was excessive (see People v Bryant, 28 NY3d 1094 [2016]; People v Sanders, 25 NY3d 337[2015]; People v Bradshaw, 18NY3d 257, 264-267 [2011]; Peoplev Reader, 155 AD3d 976 [2017]).
As the People correctly concede, the defendant should not have been sentenced as a secondviolent felony offender with respect to his convictions of counts one and two of the indictment.Since this affects the legality of his sentence, the issue is reviewable irrespective of the validity ofthe waiver of his right to appeal (see People v Seaberg, 74 NY2d 1, 9 [1989]; People v Helmus, 125 AD3d 884[2015]). Penal Law § 70.04 sets forth the criteria for determining when a felony canserve as a predicate for second violent felony offender status. To qualify as a predicate violentfelony conviction, the "[s]entence upon such prior conviction must have been imposed beforecommission of the present felony" (Penal Law § 70.04 [1] [b] [ii]; see People vSamms, 95 NY2d 52, 55 [2000]). Here, the defendant's commission of the first two counts ofrobbery in the first degree occurred prior to the sentencing for his earlier conviction, and thus, heshould not have been sentenced as a second violent felony offender with respect to hisconvictions of counts one and two of the indictment. Nevertheless, remittal for resentencing isunwarranted, as the sentence imposed on those convictions was within the permissible range(see Penal Law § 70.02 [3]), and the defendant was properly [*2]sentenced as a second violent felony offender to concurrent 18-yearterms of imprisonment on the remaining five convictions of robbery in the first degree (seegenerally People v Caldwell, 272 AD2d 87, 88 [2000]).
The defendant's contention, raised in his pro se supplemental brief, that his plea of guiltyshould be rendered null and void because the Justice who presided over his plea proceedingrecused herself prior to sentencing is unpreserved for appellate review and, in any event, withoutmerit (see People v Allen, 71 AD3d778, 779 [2010]). Where, as here, a judge voluntarily recuses himself or herself to avoid theappearance of impropriety, "judicial proceedings had prior to the recusal . . . remainvalid, absent a showing of actual bias or actual impropriety" (People v Willsey, 148AD2d 764, 765-766 [1989]; see Matter of Kurz v Justices of Supreme Ct. of N.Y., KingsCounty, 228 AD2d 74, 76 [1997]). No such showing has been made here (see People vAllen, 71 AD3d at 779; Matter of Kurz v Justices of Supreme Ct. of N.Y., KingsCounty, 228 AD2d at 76).
The defendant's waiver of his right to appeal precludes appellate review of his claim, raisedin his pro se supplemental brief, that he received the ineffective assistance of counsel, except tothe extent that counsel's alleged ineffective assistance affected the voluntariness of his plea (see People v Weston, 145 AD3d746, 747 [2016]). To the extent that the defendant contends that counsel's allegedineffectiveness affected the voluntariness of his plea, his contention 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 (see People v Leverich, 139 AD3d756 [2016]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Leverich, 139AD3d at 757; People v Maxwell, 89 AD3d at 1109). Scheinkman, P.J., Dillon, Cohenand Christopher, JJ., concur.