People v. McNair

Feb 19, 2014
Versions:114 A.D.3d 881
980 N.Y.S.2d 779

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered August 25, 2011, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant‘s claims of ineffective assistance of counsel cannot be reviewed on direct appeal because they are based on matter outside the record on appeal (see People v Rohlehr, 87 AD3d 603, 604 [2011]; People v Miller, 68 AD3d 1135, 1135 [2009]). “The appropriate vehicle . . . to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the . . . record is [a motion] pursuant to CPL 440.10, where matters dehors the record may be considered” (People v Rohlehr, 87 AD3d at 604, quoting People v Miller, 68 AD3d at 1135).

The defendant‘s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257 [2011]; People v Lopez, 6 NY3d 248, 255 [2006]; People v Gonzalez, 109 AD3d 1003 [2013]; People v Arias, 100 AD3d 914 [2012]). Dillon, J.P., Balkin, Leventhal and Chambers, JJ., concur.