PEOPLE v. LOVE (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Robert A. Schwartz, J.), rendered May 12, 2025, convicting him of assault in the second degree, assault in the third degree, and driving while intoxicated, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 NY3d 545).  The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d 248, 255).

The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, since the defendant did not move to withdraw his plea or otherwise raise this issue before the County Court (see CPL 470.05[2];  People v. Peque, 22 NY3d 168, 182).  In any event, the record demonstrates that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v. Harris, 61 N.Y.2d 9, 17;  People v. Sulaiman, 134 AD3d 860, 861).

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 plea of guilty (see People v. Ponce, 232 AD3d 741, 742).  Further, by entering a plea of guilty, the defendant forfeited any claim of ineffective assistance of counsel that did not directly involve the plea negotiation process (see id.).  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 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 AD3d 1108, 1109;  see People v. Meyn, 193 AD3d 1080, 1080).  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. Escobar, 244 AD3d 999, 1000–1001;  People v. Ponce, 232 AD3d at 742).

The defendant's contention that the County Court failed to conduct a sufficient inquiry to determine whether he violated the conditions of his interim probation is unpreserved for appellate review (see CPL 470.05[2];  People v. Lopez, 71 N.Y.2d 662, People v. Portillo, 208 AD3d 522, 523), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v. Hopkins, 188 AD3d 1253, 1254).

DILLON, J.P., WAN, VENTURA and QUIRK, JJ., concur.