PEOPLE v. MARTINEZ (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Chris Ann Kelley, J.), rendered October 21, 2021, convicting him of course of sexual conduct against a child in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the validity of his plea of guilty is unpreserved for appellate review because the defendant did not move to withdraw his plea or otherwise object to its entry prior to the County Court imposing sentence (see People v. Williams, 27 NY3d 212, 214;  People v. Lee, 225 AD3d 788, 788–789).  In any event, the record demonstrates that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v. Peque, 22 NY3d 168, 197–198;  People v. Hollmond, 191 AD3d 120, 136).

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. Heggs, 237 AD3d 1107, 1108 [internal quotation marks omitted];  see People v. Evans, 16 NY3d 571, 575 n 2;  People v. Heusel, 231 AD3d 746, 747).  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. Freeman, 93 AD3d 805, 806;  People v. Maxwell, 89 AD3d 1108, 1109).

BARROS, J.P., GENOVESI, FORD and WAN, JJ., concur.