People v. Yancey

204 A.D.3d 1044

165 N.Y.S.3d 359 (Mem)

The PEOPLE, etc., respondent,

v.Hasan YANCEY, etc., appellant.

2019–04988

Ind. No. 16–00530

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

Submitted—February 25, 2022

April 27, 2022

Jeffrey F. Kebrdle II, White Plains, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Shea Scanlon Lomma of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E. Warhit, J.), rendered May 3, 2018, convicting him of attempted robbery in the first degree (two counts) and robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported waiver of the right to appeal was invalid because the County Court mischaracterized the appellate rights waived as encompassing an absolute bar to filing an appellate brief, and the loss of attendant rights to counsel and poor person relief (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Keith, 201 A.D.3d 738, 156 N.Y.S.3d 893 ). Moreover, the record reflects that the court made its own offer of sentence to the defendant and required the defendant to waive his right to appeal, without setting forth any reason for demanding an appeal waiver (see People v. Esposito, 187 A.D.3d 781, 130 N.Y.S.3d 331 ; People v. Sutton, 184 A.D.3d 236, 244–245, 125 N.Y.S.3d 739 ). Thus, the defendant's purported waiver of the right to appeal does not preclude appellate review of his challenge to the factual sufficiency of the plea allocution.

However, the defendant's challenge to the factual sufficiency of the plea allocution is unpreserved for appellate review because he did not move to withdraw the plea or otherwise raise the issue before the County Court (see People v. Rodriquez, 194 A.D.3d 1078, 144 N.Y.S.3d 611 ). In any event, the defendant's plea allocution was factually sufficient and the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see id. at 1078, 144 N.Y.S.3d 611 ; People v. Singh, 158 A.D.3d 824, 825, 68 N.Y.S.3d 888 ; People v. Johnson, 140 A.D.3d 1188, 1189, 35 N.Y.S.3d 375 ).

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 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...