| People v Tallegrand |
| 2019 NY Slip Op 08228 [177 AD3d 783] |
| November 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terrance Tallegrand, Appellant. |
Joseph J. Artrip, Cornwall, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Nicholas DeRosa, J., at plea; Craig Stephen Brown, J., at sentence), rendered February7, 2017, convicting him of criminal mischief in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the recorddoes not demonstrate that the defendant understood the distinction between the right toappeal and the other trial rights that are forfeited incident to a plea of guilty (see People v Ryerson, 172AD3d 909, 909 [2019]; People v Santeramo, 153 AD3d 1286, 1286-1287 [2017]).Moreover, the County Court failed to provide the defendant with an adequateexplanation of the nature of the right to appeal and the consequences of waiving thatright (cf. People v Brown,122 AD3d 133, 144 [2014]). Further, although the record on appeal reflects that thedefendant signed a written appeal waiver form, the transcript of the plea proceedingshows that the court did not ascertain on the record whether the defendant had read thewritten waiver or whether he was even aware of its contents (see People v Bradshaw, 18NY3d 257, 267 [2011]; People v Santeramo, 153 AD3d at 1287; Peoplev Brown, 122 AD3d at 145). Accordingly, the defendant did not knowingly,voluntarily, and intelligently waive his right to appeal, and thus, the waiver does notpreclude appellate review of the defendant's contention that the sentence imposed wasexcessive (see People vLopez, 6 NY3d 248, 255 [2006]; People v Brown, 122 AD3d 133 [2014]). Nevertheless, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant contends that counsel who represented him during the pleaproceedings was ineffective for failing to move for a competency examination pursuantto CPL 730.30. By pleading guilty, the defendant forfeited appellate review of any claimsof ineffective assistance of counsel that do not directly involve the plea negotiationprocess and sentence (seePeople v McTerrell, 174 AD3d 648 [2019]; People v Worthy, 138 AD3d 1042, 1042 [2016]). To theextent that the defendant's contention relates to alleged ineffective assistance that directlyinvolves the plea negotiation process and sentence, it is based, in part, on matterappearing on the record and, in part, on matter outside the record, and, thus, constitutes a"mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 575 n 2 [2011]). 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, and wedecline to review the claim on this direct appeal (see People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109).
To the extent that the defendant contends that, due to the ineffective assistance ofcounsel, his plea was not knowing, intelligent, and voluntary, that contention wouldsurvive even a valid waiver of the right to appeal (see People v Elcine, 43 AD3d 1176, 1177 [2007]; People v Mabry, 27 AD3d835 [2006]). However, the defendant's contention is without merit, as the recorddemonstrates that the defendant's plea of guilty was entered knowingly, voluntarily, andintelligently (see People vMarcinak, 69 AD3d 654, 655 [2010]).
The defendant's remaining contention is without merit. Chambers, J.P., Maltese,LaSalle and Christopher, JJ., concur.