| People v Booker |
| 2020 NY Slip Op 03421 [184 AD3d 772] |
| June 17, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Diquan Booker, Appellant. |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Brian Witthuhn and Rebecca L. Abensurof counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Nassau County(William J. O'Brien, J.), both rendered April 13, 2016, convicting him of arson in the seconddegree under indictment No. 1085/14 and attempted murder in the second degree, criminal use ofa firearm in the first degree, and criminal contempt in the first degree under indictment No.1131/14, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant contends that his pleas of guilty were not knowing, voluntary, and intelligent.The defendant failed to preserve this contention for appellate review since he did not move tovacate his pleas or otherwise raise the issue before the Supreme Court (see CPL 470.05[2]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Griffin, 173 AD3d 1203, 1203-1204 [2019]). In any event,the record demonstrates that, despite the defendant's history of mental health issues, his pleaswere knowingly, intelligently, and voluntarily entered (see People v Blanco, 175 AD3d 1548, 1548 [2019]; People v Narbonne, 131 AD3d626, 627 [2015]). The defendant's contention that his pleas were not knowing, intelligent,and voluntary because the court did not inform him of the possibility of additional incarcerationif he were to violate a condition of his postrelease supervision is without merit (see People v Monk, 21 NY3d 27,32 [2013]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing 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 NY3d 571,575 n 2 [2011]). 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, and we decline to review the claim onthis direct appeal (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).Austin, J.P., Maltese, LaSalle and Brathwaite Nelson, JJ., concur.