PEOPLE v. ROSS

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The PEOPLE, etc., respondent, v. Von I. ROSS, appellant.

Decided: January 29, 2014

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ. Michael G. Paul, New York, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.

Appeals by the defendant from two judgments of the County Court, Orange County (Freehill, J.), both rendered January 9, 2012, convicting him of attempted burglary in the third degree under S.C.I. No. 11–00052, and burglary in the third degree under Indictment No. 11–00285, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

Contrary to the People's contention, the record does not support the conclusion that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, since there is no indication that the defendant “understood the distinction between the right to appeal and other trial rights forfeited incident to [his] guilty plea[s]” (People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59; see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627).

However, the transcripts of the plea proceedings amply demonstrate that the defendant's pleas of guilty were knowingly, voluntarily, and intelligently entered (see People v. Wolven, 105 A.D.3d 782, 961 N.Y.S.2d 794; People v. Elufe, 102 A.D.3d 982, 958 N.Y.S.2d 611; see generally People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646). Moreover, by validly pleading guilty, the defendant forfeited his claim that he was denied his right to testify before the grand jury (see People v. Benitez, 84 A.D.3d 826, 826–827, 922 N.Y.S.2d 797; People v. Standley, 269 A.D.2d 614, 615, 704 N.Y.S.2d 825; People v. Ferrara, 99 A.D.2d 257, 259, 472 N.Y.S.2d 407).

By pleading guilty, the defendant forfeited his claims of ineffective assistance of counsel which did not directly involve the plea bargaining process (see People v. Opoku, 61 A.D.3d 705, 876 N.Y.S.2d 493). The defendant's claim that he was deprived of the effective assistance of counsel with respect to the plea bargaining process 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. Edmunson, 109 A.D.3d 621, 622, 970 N.Y.S.2d 635; People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386). 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, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance, to the extent that it has not been forfeited by his plea of guilty, 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. Edmunson, 109 A.D.3d at 623, 970 N.Y.S.2d 635; 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).

The sentences imposed were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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