People v. Palmer

• Decision Date: 15 May 2012
• Citation: 95 A.D.3d 1141,943 N.Y.S.2d 778,2012 N.Y. Slip Op. 03859
• Parties: The PEOPLE, etc., respondent, v. Kevin PALMER, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03859

943 N.Y.S.2d 778

95 A.D.3d 1141

The PEOPLE, etc., respondent,

v.Kevin PALMER, appellant.

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

May 15, 2012.

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

Francis D. Phillips II, District Attorney, Middletown, N.Y. (Robert H. Middlemiss of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered August 9, 2010, convicting him of rape in the third 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 knowingly, voluntarily, and intelligently made is unpreserved for appellate review since he did not move to withdraw his plea on that ground prior to sentencing ( see CPL 470.05[2]; People v. Hernandez–Bautista, 89 A.D.3d 749, 931 N.Y.S.2d 907; People v. Gantt, 85 A.D.3d 815, 816, 924 N.Y.S.2d 821). In any event, the plea was knowingly, voluntarily, and intelligently made ( see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).

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, 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).

The defendant's remaining contentions are without merit.

SKELOS, J.P., ANGIOLILLO, BE...