The People, etc., respondent, v. Darnell King, appellant.
Submitted—February 18, 2014
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Zambelli, J.), rendered July 5, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on record and, in part, on matter outside the record and, thus, constitutes a “mixed claim[ ]” of ineffective assistance (see People v. Maxwell, 89 AD3d 1108, 1109, quoting People v. Evans, 16 NY3d 571, 575 n 2, cert denied _ U.S. _, 132 S Ct 325). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824; People v. Brown, 45 N.Y.2d 852). 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. Freeman, 93 AD3d 805, 806; People v. Maxwell, 89 AD3d at 1109; People v. Rohlehr, 87 AD3d 603, 604).
Appellate review of the defendant's claims concerning his factual allocution at the plea proceeding are precluded by his valid waiver of the right to appeal (see People v. Lopez, 6 NY3d 248, 255; People v. Reina, 35 AD3d 509, 509–510). Also, by withdrawing all pending and undecided motions, the defendant waived his right to seek appellate review of those motions (see People v. Baez, 52 AD3d 840). Moreover, even if the motions had been decided, the defendant's valid waiver of his right to appeal would bar appellate review of the determinations disposing of those motions.
BALKIN, J.P., SGROI, COHEN and LASALLE, JJ., concur.
Clerk of the Court