PEOPLE v. CASSADEAN (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A. Harrington, J.), rendered February 17, 2015, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297).  A waiver of the right to appeal will not be enforced unless it was knowingly, intelligently, and voluntarily made (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108).  Furthermore, the waiver is effective only when the record demonstrates that the defendant has a full appreciation of the consequences of that waiver (see People v. Brown, 122 A.D.3d at 136, 992 N.Y.S.2d 297).  Here, the record shows that the court did not properly explain that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

Contrary to the defendant's contentions, the record demonstrates that his plea of guilty was entered voluntarily, knowingly, and intelligently (see CPL 220.60[3];  People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Williams, 129 A.D.3d 1000, 13 N.Y.S.3d 442;  People v. Franco, 104 A.D.3d 790, 960 N.Y.S.2d 507).  In particular, the record demonstrates that the defendant understood the proceedings and was not impaired by the medication he was taking (see People v. Wilson, 132 A.D.3d 786, 17 N.Y.S.3d 649).  Moreover, the Supreme Court was not required to inquire into a possible affirmative defense, since nothing in the record suggested that an affirmative defense might exist (see People v. Washington, 186 A.D.2d 834, 589 N.Y.S.2d 354;  People v. Martinez, 127 A.D.2d 855, 512 N.Y.S.2d 10).

Contrary to the defendant's contentions, in a plea allocution, the defendant need not specifically admit to each element of the crime (see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692;  People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797).  A plea allocution is sufficient where, as here, the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea (see People v. Barrett, 105 A.D.3d 862, 863, 962 N.Y.S.2d 673).

The defendant further contends that his plea was involuntary because he was never advised that his parental rights to his son could be terminated upon his conviction.  This contention is unpreserved for appellate review, as the defendant did not move to withdraw his plea on this ground prior to sentencing (see CPL 220.60[3], 470.05[2];  People v. Hernandez, 110 A.D.3d 919, 972 N.Y.S.2d 697;  People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220).

The defendant's claim of ineffective assistance of counsel is based, in part, on matters outside the record and, thus, constitutes a mixed claim of ineffective assistance (see People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386).  Therefore a CPL 440.10 proceeding is the appropriate forum for resolving the claim in its entirety (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.