PEOPLE v. HENRY (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny Chun, J.), rendered March 30, 2022, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

By entering a plea of guilty, the defendant forfeited his contention that he was exempt from prosecution for criminal possession of a firearm based on his alleged status as a peace officer at the time of the offense (see Penal Law § 265.20[a][1][c];  see generally People v. Levin, 57 N.Y.2d 1008, 1009, 457 N.Y.S.2d 472, 443 N.E.2d 946;  People v. Harley, 154 A.D.3d 443, 444, 60 N.Y.S.3d 824;  People v. King, 79 A.D.3d 907, 907, 912 N.Y.S.2d 423;  People v. Gerber, 182 A.D.2d 252, 260–261, 589 N.Y.S.2d 171).  To the extent that the defendant contends that the indictment charging him with, inter alia, criminal possession of a firearm was defective, that contention is without merit.  The peace officer exemption of Penal Law § 265.20(a)(1)(c) is a proviso, which need not be pleaded in the indictment but may be raised by the accused as a bar to prosecution or a defense at trial (see People v. David, 41 N.Y.3d 90, 96, 207 N.Y.S.3d 456, 231 N.E.3d 402;  People v. Santana, 7 N.Y.3d 234, 236, 818 N.Y.S.2d 842, 851 N.E.2d 1193;  People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312;  People v. Rodriguez, 235 A.D.3d 541, 542, 228 N.Y.S.3d 437).

Further, by entering a plea of 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. Ponce, 232 A.D.3d 741, 742, 221 N.Y.S.3d 659).  To the extent that the defendant's ineffective assistance of counsel claim was not forfeited by his plea 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 this direct appeal (see People v. Ponce, 232 A.D.3d at 742, 221 N.Y.S.3d 659).

CONNOLLY, J.P., WOOTEN, VENTURA and HOM, JJ., concur.