People v. Martinez

194 A.D.3d 753

143 N.Y.S.3d 574 (Mem)

The PEOPLE, etc., respondent,

v.Marco A. MARTINEZ, appellant.

2019–12598

Ind. No. 18-505

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

Submitted—April 21, 2021

May 5, 2021

Thomas R. Villecco, Jericho, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered April 8, 2019, convicting him of aggravated operating a motor vehicle while under the influence of alcohol, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of the effective assistance of counsel based upon his attorney's alleged failure to accurately advise him of the immigration consequences of his plea 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 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. 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 ).

To the extent that the People argue that the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowingly, intelligently, and voluntarily entered because of defense counsel's alleged misadvice as to the...