People v Powell

People v Powell 2015 NY Slip Op 09631 Decided on December 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 29, 2015
Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.
1453/13

[*1]16505 The People of the State of New York, Respondent,

v

Davon Powell, Defendant-Appellant.

Marianne Karas, Thornwood, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 2, 2013, as amended September 30, 2013, convicting defendant, upon his plea of guilty, of conspiracy in the second degree, and sentencing him to a term of 6 to 18 years, unanimously affirmed.

The record does not reflect that defendant knowingly and voluntarily waived his appellate rights (see People v Bradshaw, 18 NY3d 257, 264 [2011]; see People v Seaberg, 74 NY2d 1, 111 [1989]). Notwithstanding, we do not reach defendant's claim that his guilty plea was invalid because it was unpreserved. Defendant did not make a postallocution motion to either withdraw his plea or to set aside the judgment of conviction pursuant to CPL 440.10, (see People v Conceicao, 2015 NY Slip Op 08615; see People v Jackson, 123 AD3d 634 [1st Dept 2014], lv denied 25 NY3d 1201 [2015]), and we decline to review it in the interest of justice. Unlike the situation in People v Tyrell (22 NY3d 359, 364 [2013]), defendant had the opportunity to move to withdraw his plea or otherwise raise the issue, and the alleged deficiency did not rise to the level of a mode of proceedings error. As an alternative holding, we find that the record as a whole establishes the voluntariness of the plea (see Conceicao, 2015 NY Slip Op 08615, 11/21, 22 NY3d at 365; see also People v Harris, 61 NY2d 9, 16-19 [1983]).

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Ford, 86 NY2d 397, 404 [1995]) Strickland v Washington, 466 US 668 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 29, 2015

CLERK