| People v Fraser |
| 2021 NY Slip Op 01270 [192 AD3d 702] |
| March 3, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Johnathon P. Fraser, Appellant. |
Marianne Karas, Thornwood, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Cristin N. Connell of counsel; JamesMasterson on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert G.Bogle, J.), rendered July 2, 2018, convicting him of criminal possession of a weapon in thesecond degree, criminal possession of a controlled substance in the fourth degree, and operating amotor vehicle while under the influence of alcohol, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant contends that his plea of guilty was not knowing, intelligent, and voluntary,because he was not advised of certain potential consequences of his plea, and that he was deniedthe effective assistance of counsel for the same reason. A challenge to the voluntariness of theplea survives a valid appeal waiver, as does a claim of ineffective assistance of counsel that mayhave impaired the voluntariness of the plea (see People v Bhuiyan, 181 AD3d 699, 700 [2020]; People v Fontanet, 126 AD3d 723,723 [2015]). Therefore, there is no merit to the People's contention that the purported appealwaiver precludes appellate review of the defendant's claims, and we need not determine whetherthe purported appeal waiver was valid (see People v Ward, 140 AD3d 903, 904 [2016]).
The defendant's contention concerning the voluntariness of his plea, however, is unpreservedfor appellate review as he did not move to withdraw his plea or otherwise raise these issuesbefore the Supreme Court (see CPL 220.60 [3]; 470.05 [2]; People v Conceicao, 26 NY3d375, 381-382 [2015]; People vTalbert, 186 AD3d 508, 509 [2020]). In any event, this contention is without merit, asthe record establishes a knowing, intelligent, and voluntary plea of guilty (see generally People v Hill, 9 NY3d189, 191 [2007]).
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).Mastro, A.P.J., Hinds-Radix, Brathwaite Nelson and Iannacci, JJ., concur.