People v. Shemack
Decision Date | 04 December 2007 |
Docket Number | 2004-08101. |
Citation | 845 N.Y.S.2d 914,46 A.D.3d 582,2007 NY Slip Op 09611 |
Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHAWN SHEMACK, Appellant. |
Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the record clearly establishes that his plea of guilty "`represent[ed] a voluntary and intelligent choice among alternative courses of action open to [him]'" (People v Louree, 8 NY3d 541, 545 [2007], quoting People v Ford, 86 NY2d 397, 403 [1995]).
Contrary to the People's contention, however, the defendant's waiver of his right to appeal was ineffective, as there is no indication in the record "that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea" (People v Moyett, 7 NY3d 892, 893 [2006]; see People v Lopez, 6 NY3d 248, 257 [2006]; People v Elcine, 43 AD3d 1176 [2007]). Based on the evidence adduced at the suppression hearing, we find no error in the hearing court's determination (see People v Delfino, 234 AD2d 382, 383 [1996]; People v Baird, 155 AD2d 918, 919 [1989]; see also Stansbury v California, 511 US 318, 323-324 [1994]; People v Rodney P. [Anonymous], 21 NY2d 1, 6 [1967]; People v Petty, 204 AD2d 125, 126 [1994]).
The defendant's claim of ineffective assistance of counsel is based on matter dehors the record and, therefore, cannot be reviewed on direct appeal (see People v Hernandez, 44 AD3d 684 [2007]; People v Maize, 40 AD3d 884 [2007]).
The defendant's remaining contention is without merit.
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