PEOPLE v. MONROE

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

The PEOPLE, etc., Respondent, v. Savata M. MONROE, Appellant.

2016-11871

Decided: July 10, 2019

JOHN M. LEVENTHAL, J.P., HECTOR D. LASALLE, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ. Salvatore C. Adamo, New York, NY, for appellant, and appellant pro se. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered August 24, 2016, 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.

The defendant was convicted of criminal possession of a weapon in the second degree upon his plea of guilty and was sentenced, in accordance with the plea agreement, to a determinate term of imprisonment of 10 years plus a period of 5 years' postrelease supervision.

By pleading guilty, the defendant forfeited his contention, raised in his pro se supplemental brief, that the indictment was defective on the ground that allegedly perjured testimony impaired the integrity of the grand jury proceeding (see People v. Manragh, 32 N.Y.3d 1101, 1102–1103, 90 N.Y.S.3d 623, 114 N.E.3d 1076;  People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Di Raffaele, 55 N.Y.2d 234, 240, 448 N.Y.S.2d 448, 433 N.E.2d 513;  People v. Whitehurst, 291 A.D.2d 83, 88, 737 N.Y.S.2d 152;  People v. Garcia, 172 A.D.2d 330, 568 N.Y.S.2d 402;  cf.  People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447).

The defendant's contentions that his plea was not knowing, voluntary, or intelligent because he was coerced by his trial attorney and the County Court are unpreserved for appellate review, since the defendant did not move to vacate his plea or otherwise raise these issues before the court (see People v. Clarke, 93 N.Y.2d 904, 905, 690 N.Y.S.2d 501, 712 N.E.2d 668;  People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Mitchell, 156 A.D.3d 817, 818, 65 N.Y.S.3d 730;  People v. McCracken, 138 A.D.3d 1147, 28 N.Y.S.3d 890;  People v. Perez, 51 A.D.3d 1043, 861 N.Y.S.2d 63).  In any event, the defendant's claims are belied by the record, which reveals that the defendant acknowledged under oath that no one had threatened or forced him to plead guilty and that he was pleading guilty voluntarily (see People v. McCracken, 138 A.D.3d 1147, 28 N.Y.S.3d 890;  People v. Tavares, 103 A.D.3d 820, 821, 962 N.Y.S.2d 196;  People v. Martinez, 78 A.D.3d 966, 967, 910 N.Y.S.2d 684).

By pleading guilty, the defendant forfeited his claim, raised in his pro se supplemental brief, of ineffective assistance of counsel, to the extent that it did not directly involve the plea negotiation process (see People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413;  People v. Solis, 111 A.D.3d 654, 655, 974 N.Y.S.2d 132;  People v. Perazzo, 65 A.D.3d 1058, 1059, 886 N.Y.S.2d 43).  To the extent that the defendant contends that his counsel's conduct affected the voluntariness of his plea, the defendant's claim 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 of counsel (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386;  see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457).  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. Joseph, 167 A.D.3d 776, 778, 89 N.Y.S.3d 278;  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).

Contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

LEVENTHAL, J.P., LASALLE, BARROS and BRATHWAITE NELSON, JJ., concur.