People v. Dauch

• Decision Date: 05 July 2012
• Parties: The PEOPLE, etc., respondent, v. Louis DAUCH, appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 602

947 N.Y.S.2d 331

2012 N.Y. Slip Op. 05435

The PEOPLE, etc., respondent,

v.Louis DAUCH, appellant.

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

July 5, 2012.

Salvatore C. Adamo, New York, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso of counsel), for respondent.

Appeal by the defendant from an amended judgment of the County Court, Orange County (DeRosa, J.), rendered October 12, 2010, revoking a sentence of probation previously imposed by the same court upon a finding that he violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree.

ORDERED that the amended judgment is affirmed.

The defendant failed to preserve for appellate review his contention that his admission to violating a condition of his probation was not knowingly, voluntarily, and intelligently made ( see People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;People v. Guzzardo, 87 A.D.3d 1160, 1161, 929 N.Y.S.2d 880;People v. Decker, 83 A.D.3d 731, 732, 919 N.Y.S.2d 880). In any event, the defendant's contention is without merit ( see People v. Decker, 83 A.D.3d at 732, 919 N.Y.S.2d 880;People v. Ramirez, 29 A.D.3d 1022, 815 N.Y.S.2d 480;People v. Carden, 27 A.D.3d 573, 810 N.Y.S.2d 365).

The defendant's contention that he was deprived of the constitutional right to the effective assistance of counsel on the ground that his attorney failed to make a motion to withdraw his admission to the violation of probation 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, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457,cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). 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 ( cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815;People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance 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. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314;People v. Maxwell, 89 A.D.3d at 1109, 933...