People v. Lassiter — 143 A.D.3d 917

Majority

p. 917

The People of the State of New York, Respondent, v Levy G. Lassiter, Appellant.

[38 NYS3d 917]

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered June 27, 2014, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his plea of guilty was not voluntary is unpreserved for appellate review, since he failed to move to withdraw his guilty plea (see People v Pryor, 11 AD3d 565 [2004]). In any event, the defendant’s plea of guilty was knowingly, voluntarily, and intelligently entered (see People v Fiumefreddo, 82 NY2d 536 , 543 [1993]; People v Lopez, 71 NY2d 662 , 666 [1988]; People v Harris, 61 NY2d 9 , 17 [1983]). The defendant’s factual allocution to criminal possession of a controlled substance in the third degree was sufficient (see Penal Law §§ 10.00, 220.00 [7]; 220.16 [1]).

The defendant’s contention that he was deprived of the effective assistance of counsel is based, 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 Rosado, 134 AD3d 1133 [2015]). It is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v Rivera, 71 NY2d

p. 918

705 [1988]; People v Love, 57 NY2d 998 [1982]; People v Hernandez, 125 AD3d 885 , 886-887 [2015]; People v Maxwell, 89 AD3d at 1109 ). Since the defendant’s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Renaud, 137 AD3d 818 , 821 [2016]; People v Addison, 107 AD3d 730 , 732 [2013]; People v Maxwell, 89 AD3d at 1109 ).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 , 85 [1982]).

Chambers, J.P., Dickerson, Miller and Connolly, JJ., concur.

Cases cited

People v. Fiumefreddo 82 NY2d 536 N.Y. 1993-12-16 at 543 p. 917
People v. Lopez 71 NY2d 662 N.Y. 1988-06-02 at 666 p. 917
People v. Harris 61 NY2d 9 N.Y. 1983-12-15 at 17 p. 917
People v. Maxwell 89 AD3d 1108 N.Y. App. Div. 2011-11-29 at 1109 p. 917
People v. Love 57 NY2d 998 N.Y. 1982-11-09 p. 918
People v. Hernandez 125 AD3d 885 N.Y. App. Div. 2015-02-18 at 886-887 p. 918
People v. Addison 107 AD3d 730 N.Y. App. Div. 2013-06-05 at 732 p. 918
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 at 85 p. 918