People v. Fakhoury

• Decision Date: 06 February 2013
• Citation: 2013 N.Y. Slip Op. 00762,959 N.Y.S.2d 269,103 A.D.3d 664
• Parties: The PEOPLE, etc., respondent, v. John FAKHOURY, appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 664
959 N.Y.S.2d 269
2013 N.Y. Slip Op. 00762

The PEOPLE, etc., respondent,
v.
John FAKHOURY, appellant.

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

Feb. 6, 2013.

David Gandin, Walden, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.

PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Posner, J.), rendered February 15, 2012, convicting him of criminal mischief in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

[959 N.Y.S.2d 270]

By pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea bargaining process and sentence ( see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669;People v. Soria, 99 A.D.3d 1027, 952 N.Y.S.2d 300;People v. Davis, 95 A.D.3d 1032, 1033, 943 N.Y.S.2d 770;People v. Collier, 71 A.D.3d 909, 910, 895 N.Y.S.2d 848). To the extent that the defendant contends that he was otherwise deprived of the constitutional right to the effective assistance of counsel, his claim 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). It is not evident from the matter which appears 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, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).

As the defendant has already served his sentence, the remaining issues, which relate to the length of his sentence, are academic ( see People v. Reyes, 74 N.Y.2d 837, ...