PEOPLE v. BENSON (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (William A. Kelly, J.), rendered May 12, 2015, convicting her of murder in the second degree, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that her plea of guilty was not entered knowingly, voluntarily, and intelligently is not preserved for appellate review because she did not move to vacate her plea or otherwise raise the issue before the Supreme Court (see CPL 470.05[2];  People v. Dancy, 156 A.D.3d 717, 66 N.Y.S.3d 530;  People v. Crosby, 133 A.D.3d 681, 20 N.Y.S.3d 100).  In any event, the contention is without merit, as the record of the plea proceedings demonstrates that the defendant's plea was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).

The defendant's purported waiver of her right to appeal was invalid because the Supreme Court's “terse colloquy” at the plea allocution failed to sufficiently advise the defendant of the nature of her right to appeal (People v. Salgado, 111 A.D.3d 859, 859, 975 N.Y.S.2d 172;  see People v. Nugent, 109 A.D.3d 625, 970 N.Y.S.2d 634), and thus, does not preclude appellate review of her excessive sentence claim.  However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's contention that she was denied the effective assistance of counsel is based, in part, on matter dehors the record and thus constitutes a “mixed claim” of ineffective assistance of counsel (see People v. Crosby, 133 A.D.3d 681, 20 N.Y.S.3d 100;  People v. Williams, 120 A.D.3d 721, 723, 991 N.Y.S.2d 427;  People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386).  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, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815).  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. Crosby, 133 A.D.3d at 682, 20 N.Y.S.3d 100;  People v. Duren, 130 A.D.3d 842, 13 N.Y.S.3d 512;  People v. Williams, 120 A.D.3d at 724, 991 N.Y.S.2d 427;  People v. Addison, 107 A.D.3d 730, 732, 966 N.Y.S.2d 217;  People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314).

LEVENTHAL, J.P., COHEN, HINDS–RADIX and IANNACCI, JJ., concur.