| People v Green |
| 2019 NY Slip Op 05147 [173 AD3d 1202] |
| June 26, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Richard R. Green, Appellant. |
Salvatore C. Adamo, New York, 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 (Edward T.McLoughlin, J.), rendered April 10, 2017, convicting him of operating a motor vehicle whileunder the influence of alcohol, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The record of the plea proceeding establishes that the defendant validly waived his right toappeal (see People v Sanders, 25NY3d 337, 339-342 [2015]; Peoplev Batista, 167 AD3d 69, 73 [2018]). The colloquy between the County Court and thedefendant demonstrated the defendant's understanding of the distinction between the right toappeal and other rights he was giving up by virtue of the plea, as well as the consequences of thewaiver (see People v Batista, 167 AD3d at 74). The record demonstrates that thedefendant understood the nature of his right to appeal and that he knowingly, voluntarily, andintelligently waived that right (see People v Batista, 167 AD3d at 74).
The defendant's contention that his plea was not knowing, intelligent, and voluntary is notbarred by his valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10[1989]; People v Mendoza, 153AD3d 1364, 1365 [2017]). However, the defendant failed to preserve this contention forappellate review since he failed to move to withdraw his plea (see People v Williams, 27 NY3d212, 214 [2016]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Perez, 160 AD3d 901,901 [2018]). The exception to the preservation requirement does not apply here because thedefendant's plea allocution does not "clearly cast[ ] significant doubt upon the defendant's guilt orotherwise call[ ] into question the voluntariness of the plea" (People v Lopez, 71 NY2d at666; see People v Griffin, 167AD3d 934, 934 [2018]; People v Mendoza, 153 AD3d at 1365). In any event, therecord indicates that the defendant entered his plea of guilty knowingly, voluntarily, andintelligently (see People v Ward,126 AD3d 730, 730 [2015]; Peoplev Kelly, 121 AD3d 713, 713 [2014]; People v M'Lady, 59 AD3d 568, 568 [2009]).
The defendant's valid waiver of the right to appeal does not preclude review of his claim ofineffective assistance of counsel since he claims that ineffective assistance of counsel affectedthe voluntariness of the plea (see Peoplev Weston, 145 AD3d 746, 747 [2016]; People v Perazzo, 65 AD3d 1058, 1059 [2009]). The defendant'scontention that he was deprived of the effective assistance of counsel 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]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). 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 thedefendant's claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's valid waiver of the right to appeal precludes review of his contention that thesentence imposed was excessive (seePeople v Lopez, 6 NY3d 248, 255-256 [2006]; People v Gipson, 170 AD3d 1037 [2019]). Leventhal, J.P., Roman,LaSalle and Christopher, JJ., concur.