People v. Rojas

196 A.D.3d 704

148 N.Y.S.3d 700 (Mem)

The PEOPLE, etc., respondent,

v.David ROJAS, appellant.

2019–01807

Ind. No. 17-01272

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

Submitted—June 21, 2021

July 28, 2021

Marianne Karas, Thornwood, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, N.Y. (William C. Milaccio of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Susan M. Capeci, J.), rendered July 30, 2018, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, since the defendant did not move to withdraw his plea or otherwise raise the issue in the County Court (see CPL 220.60[3] ; 470.05[2]; People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Smith, 193 A.D.3d 986, 142 N.Y.S.3d 834 ; People v. Fraser, 192 A.D.3d 702, 703, 139 N.Y.S.3d 560 ). In any event, the record establishes that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Sougou, 26 N.Y.3d 1052, 1055–1056, 23 N.Y.S.3d 121, 44 N.E.3d 196 ; People v. Conceicao, 26 N.Y.3d 375, 383–384, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Harris, 61 N.Y.2d 9, 20–21, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Fraser, 192 A.D.3d at 703, 139 N.Y.S.3d 560 ).

The defendant's claim that he was deprived of the effective assistance of counsel cannot be resolved without reference to matter outside the record. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Lopez–Mendoza, 33 N.Y.3d 565, 573, 106 N.Y.S.3d 266, 130 N.E.3d 862 ; People v. Lopez–Alvarado, 194 A.D.3d 961, 962, 144 N.Y.S.3d 380 ; People v. Coverdale, 189 A.D.3d 1610, 1611, 136 N.Y.S.3d 335 ; People v. Norberto, 188 A.D.3d 923, 924, 132 N.Y.S.3d 334 ).

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

AUSTIN, J.P., HINDS–RADIX, CONNOLLY and WOOTEN, JJ., concur.