PEOPLE v. LASSITER

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The PEOPLE, etc., respondent, v. Levy G. LASSITER, appellant.

Decided: October 19, 2016

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ. Salvatore C. Adamo, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

Appeal by the defendant from an amended judgment of the County Court, Dutchess County (Greller, J.), rendered August 20, 2014, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a controlled substance in the third degree.

ORDERED that the amended judgment is affirmed.

The defendant's contention that his plea of guilty was not voluntary is unpreserved for appellate review, since he failed to move to withdraw his guilty plea (see People v. Pryor, 11 AD3d 565). In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543; People v. Lopez, 71 N.Y.2d 662, 666; People v. Harris, 61 N.Y.2d 9, 17).

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 AD3d 1108, 1109; see People v. Rosado, 134 AD3d 1133). 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. Rivera, 71 N.Y.2d 705; People v. Love, 57 N.Y.2d 998; People v. Hernandez, 125 AD3d 885, 886–887; People v. Maxwell, 89 AD3d at 1109). 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. Renaud, 137 AD3d 818, 821; People v. Addison, 107 AD3d 730, 732; People v. Maxwell, 89 AD3d at 1109).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85).

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