People v. Hutter

154 A.D.3d 776

63 N.Y.S.3d 391

The PEOPLE, etc., respondent,

v.Steven W. HUTTER, appellant.

2014-08591, Ind. No. 2661-13.

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

Oct. 11, 2017.

Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant, and appellant pro se.

Thomas J. Spota, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Collins, J.), rendered August 20, 2014, convicting him of burglary in the first degree (two counts), burglary in the second degree (three counts), assault in the second degree (two counts), criminal mischief in the third degree, criminal mischief in the fourth degree, unlawful imprisonment in the second degree, and petit larceny, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiency of his plea allocution (see People v. Thompson, 143 A.D.3d 1007, 39 N.Y.S.3d 800 ; People v. Pinero, 138 A.D.3d 763, 764, 27 N.Y.S.3d 883 ; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220 ).

The defendant's contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ). However, the defendant failed to preserve this contention for appellate review, since he did not move to vacate his plea or otherwise raise this issue before the County Court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Morgado, 144 A.D.3d 709, 710, 39 N.Y.S.3d 839 ). In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ).

The defendant's waiver of his right to appeal precludes appellate review of his claim, raised in his pro se supplemental brief, that he received ineffective assistance of counsel, except to the extent that counsel's alleged ineffective assistance affected the voluntariness of his plea (see People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ). To the extent that the defendant contends that counsel's alleged ineffectiveness affected the voluntariness of his plea, his contention is based, in part, on matter on the record and, in part, on matter outside the record, and thus constitutes a "mixed claim" of ineffective assistance ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ). 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 (see People v. Leverich, 139 A.D.3d 756, 29 N.Y.S.3d 187 ). 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. Leverich, 139 A.D.3d at 757, 29 N.Y.S.3d 187; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).

Further, the defendant's valid waiver of his right to appeal precludes review of his contention that the...