People v. GomezPeople v. Gomez
The defendant‘s contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, since he did not move to withdraw the plea (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Pryor, 11 AD3d 565, 566 [2004]). Moreover, the exception to the preservation require
The defendant‘s valid waiver of his right to appeal precludes appellate review of his claim that he was deprived of his right to effective assistance of counsel, except to the extent that the alleged ineffective assistance may have affected the voluntariness of his plea (see People v Montalvo, 105 AD3d 774, 775 [2013]; People v Ramos, 77 AD3d 773, 774 [2010]; People v Drago, 50 AD3d 920 [2008]). To the extent that the defendant contends that his counsel‘s conduct affected the voluntariness of his plea, his contention is based, in part, on matter appearing on the record and, in part, upon matter appearing outside the record, and “thus constitutes a ‘mixed claim[ ]’ of ineffective assistance” (People v Maxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]; see People v Crawford, 106 AD3d 832, 833 [2013]; People v McClurkin, 96 AD3d 784, 785-786 [2012]). 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 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant‘s claim of ineffective assistance cannot be resolved without reference to matter outside the record, a