PEOPLE v. JOHNSON (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant was charged with murder in the second degree and criminal possession of a weapon in the second degree based on allegations that he shot and killed another person.  The defendant pleaded guilty to manslaughter in the first degree and criminal possession of a weapon in the second degree.  In connection with the plea of guilty, the defendant waived the right to appeal.

Contrary to the defendant's contention, the record demonstrates that his waiver of his right to appeal was knowingly, voluntarily, and intelligently made (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222;  People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Magnotta, 137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403;  People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371).  However, the defendant failed to preserve this contention for appellate review, as he did not move to withdraw or vacate the plea (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917).  In any event, the record shows that the plea was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Scivolette, 156 A.D.3d 730, 64 N.Y.S.3d 907;  People v. Jackson, 111 A.D.3d 960, 961, 975 N.Y.S.2d 467).

The defendant claims that he was denied the effective assistance of counsel.  Inasmuch as this claim involves counsel's alleged deficiencies that purportedly affected the voluntariness of the defendant's plea, the defendant did not forfeit the right to raise this argument on appeal (see People v. Castillo, 161 A.D.3d 1099, 73 N.Y.S.3d 890;  People v. Jessamy, 137 A.D.3d 1056, 1056–1057, 28 N.Y.S.3d 376).  The defendant's contention that he was deprived of the effective assistance of counsel 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, 925 N.Y.S.2d 366, 949 N.E.2d 457).  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 (see People v. Jessamy, 137 A.D.3d at 1057, 28 N.Y.S.3d 376;  see also People v. Rivera, 71 N.Y.2d 705, 708–709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Moore, 66 A.D.3d 707, 711–712, 886 N.Y.S.2d 468, affd 15 N.Y.3d 811, 908 N.Y.S.2d 146, 934 N.E.2d 879).  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. Marryshow, 135 A.D.3d 964, 965, 24 N.Y.S.3d 170;  People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314;  People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).

SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.