PEOPLE v. PONCE (2024)

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Nassau County (Helene F. Gugerty, J.), both rendered January 25, 2022, convicting him of murder in the second degree (two counts) under Indictment No. 2060/19, and manslaughter in the first degree (two counts) under Superior Court Information No. 159/22, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 254, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297).

Although the defendant's contention that his pleas of guilty were not knowingly, voluntarily, and intelligently entered survives his valid appeal waiver (see People v. Smith, 193 A.D.3d 986, 986, 142 N.Y.S.3d 834;  People v. Brown, 170 A.D.3d 878, 879, 96 N.Y.S.3d 110), the defendant failed to preserve that contention for appellate review, since he did not move to withdraw his pleas or otherwise raise that issue before the Supreme Court prior to the imposition of the sentences (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Smith, 193 A.D.3d at 986, 142 N.Y.S.3d 834).  Moreover, the exception to the preservation requirement does not apply here, as the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crimes, or call into question the voluntariness of the pleas (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Defilippis, 210 A.D.3d 1004, 1004, 178 N.Y.S.3d 585).  In any event, the record shows that the defendant's pleas of guilty were knowingly, intelligently, and voluntarily entered (see People v. Defilippis, 210 A.D.3d at 1004, 178 N.Y.S.3d 585;  see generally People v. Conceicao, 26 N.Y.3d 375, 382–384, 23 N.Y.S.3d 124, 44 N.E.3d 199).

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his pleas (see People v. Grafton, 230 A.D.3d 1335, ––––, 217 N.Y.S.3d 237 [2d Dept.];  People v. Augustine, 208 A.D.3d 678, 679, 171 N.Y.S.3d 898).  Further, by pleading guilty, the defendant forfeited any claims of ineffective assistance of counsel that did not directly involve the plea negotiation process (see People v. Petgen, 55 N.Y.2d 529, 534–535, 450 N.Y.S.2d 299, 435 N.E.2d 669;  People v. Price, 203 A.D.3d 955, 161 N.Y.S.3d 822;  People v. Buggsward, 138 A.D.3d 881, 882, 28 N.Y.S.3d 327).  To the extent that the defendant's ineffective assistance of counsel claim survives his valid waiver of the right to appeal, and was not forfeited by his pleas of guilty, that contention 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 A.D.3d 1108, 1109, 933 N.Y.S.2d 386;  see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457).  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, and we decline to review the claim on these direct appeals (see People v. Cherry, 226 A.D.3d 822, 823, 206 N.Y.S.3d 719;  People v. Rodriguez, 224 A.D.3d 783, 785, 205 N.Y.S.3d 451).

MILLER, J.P., CHRISTOPHER, VOUTSINAS and VENTURA, JJ., concur.