PEOPLE v. MILLIGAN (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered September 7, 2023, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Since the defendant abandoned his contention before the County Court that he should have been permitted to withdraw the plea due to the late disclosure of recantation evidence, that contention is unpreserved for appellate review (see People v. Stanton, 247 AD3d 1065, 1065–1066; People v. Powell, 200 AD3d 1011, 1012). In any event, the defendant's contention cannot be reviewed on direct appeal, as it is based on matter dehors the record (see People v. Taylor, 237 AD3d 756, 756; People v. Thomas, 150 AD3d 770, 771).

The defendant's arguments related to the voluntariness of his plea survive his valid appeal waiver (see People v. Lopez, 6 NY3d 248, 255; People v. Grafton, 230 AD3d 1335, 1335). The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent because he was misadvised by the County Court as to the maximum sentence exposure he faced if convicted after trial is reviewable, despite his failure to seek to withdraw the plea before sentencing on this ground (see People v. Drake, 199 AD3d 827, 828; People v. Keller, 168 AD3d 1098, 1099). The defendant's challenge to the voluntariness of the plea based on the late disclosure of recantation evidence is based on matter dehors the record (see People v. Taylor, 237 AD3d at 756; People v. Thomas, 150 AD3d at 771). To the extent the defendant's claim can be reviewed, the record establishes that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Epps, 249 AD3d 1073, 1074–1075; People v. Principato, 194 AD3d 851, 852–853).

The defendant's contention that the County Court exhibited bias against the defense which related to the voluntariness of the plea also survives his valid appeal waiver (see People v. Lopez, 6 NY3d at 255–256; People v. Grafton, 230 AD3d at 1335). However, the defendant's contention is unpreserved for appellate review (see CPL 470.05[2]; People v. Rivera, 125 AD3d 694, 695). In any event, the record does not support the defendant's claim of bias (see People v. Duwe, 164 AD3d 1256; People v. Rivera, 125 AD3d at 695).

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” (see People v. Bautista, 221 AD3d 727, 728; People v. Black, 161 AD3d 997, 997–998). 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. Love, 251 AD3d 732, 733).

GENOVESI, J.P., FORD, WARHIT and QUIRK, JJ., concur.