People v. Devodier

• Decision Date: 23 January 2013
• Citation: 102 A.D.3d 884,958 N.Y.S.2d 220,2013 N.Y. Slip Op. 00351
• Parties: The PEOPLE, etc., respondent, v. Roger W. DEVODIER, appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 884

958 N.Y.S.2d 220

2013 N.Y. Slip Op. 00351

The PEOPLE, etc., respondent,

v.Roger W. DEVODIER, appellant.

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

Jan. 23, 2013.

Creedon & Gill P.C., Northport, N.Y. (Peter J. Creedon of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered September 25, 2009, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of the plea allocution ( see People v. Crews, 92 A.D.3d 795, 938 N.Y.S.2d 475;People v. Hardee, 84 A.D.3d 835, 922 N.Y.S.2d 785) and to the procedure used to adjudicate him a persistent violent felony offender ( see People v. Kosse, 94 A.D.3d 908, 941 N.Y.S.2d 847;People v. Collier, 71 A.D.3d 909, 910, 895 N.Y.S.2d 848).

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668;People v. Andrea, 98 A.D.3d 627, 949 N.Y.S.2d 654). The “rare case” exception to the preservation rule does not apply here because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [internal quotation marks omitted]; see People v. Gibson, 95 A.D.3d 1033, 944 N.Y.S.2d 237,lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 473, 975 N.E.2d 919).

The defendant's claim that he was deprived of the constitutional right to 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, 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, 806, 940 N.Y.S.2d 314;People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386;People v. Rohlehr, ...