The People, etc., respondent, v. Jimel Porter, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Jimel Porter, appellant.

2011–03869 (Ind.No. 10–00330)

Decided: May 23, 2012

MARK C. DILLON, J.P. RUTH C. BALKIN ARIEL E. BELEN LEONARD B. AUSTIN, JJ. Michael G. Paul, New City, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.

Submitted—May 2, 2012

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered November 29, 2010, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent because the County Court did not specifically inform him of the availability of an affirmative defense to robbery in the first degree is unpreserved for appellate review (see People v. Toxey, 86 N.Y.2d 725, 726;  People v. McCallum, 84 AD3d 1117, 1118;  People v. Payton, 53 AD3d 590;  People v. Wallace, 247 A.D.2d 257, 259;  People v. Feichtl, 134 A.D.2d 364).   In any event, the record demonstrates that the defendant's plea was entered knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543).

The defendant's claim that he was deprived of the constitutional right to 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 AD3d 1108, 1109, quoting People v. Evans, 16 NY3d 571, 575 n 2, cert denied US, 132 S Ct 325).   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;  People v. Brown, 45 N.Y.2d 852).   The defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record.   Accordingly, a CPL 440.10 application is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 AD3d 805;  People v. Maxwell, 89 AD3d at 1109;  People v. Rohlehr, 87 AD3d 603, 604).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

DILLON, J.P., BALKIN, BELEN and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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