People v. MorrisPeople v. Morris
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ODYSSEY HEAD, Appellant. [47 NYS3d 713]—Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Murphy, J.), imposed May 6, 2015, upon his plea of guilty, on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The record of the plea proceeding did not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, and, thus, as the People correctly concede, the purported waiver of the defendant’s right to appeal is not enforceable (see People v Bynum, 142 AD3d 1183 [2016]; People v Burnett-Hicks, 133 AD3d 773 [2015]). Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Leventhal, Sgroi, Cohen and Miller, JJ., concur.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ANTHONY G. HOFMANN, Appellant. [46 NYS3d 899]—Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Dutchess County (Forman, J.), imposed December 1, 2015, upon his conviction of criminal sale of a controlled substance in the third degree, upon his plea of guilty, on the ground, inter alia, that the sentence is excessive.
Ordered that the sentence is affirmed.
The defendant’s contention that the sentence he received pursuant to the plea agreement constituted cruel and unusual punishment is unpreserved for appellate review (see
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86 [1982]). Chambers, J.P., Hall, Maltese and Barros, JJ., concur.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ERIC MORRIS, Appellant. [48 NYS3d 425]—Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered October 3, 2014, convicting him of rape in the first degree (two counts), rape in the second degree (two counts), sexual abuse in the first degree,
Ordered that the judgment is affirmed.
The defendant’s contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered 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 Narbonne, 131 AD3d 626, 627 [2015]; People v Canole, 123 AD3d 940 [2014]). In any event, the plea was knowingly, voluntarily, and intelligently entered (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d at 666; People v Harris, 61 NY2d 9, 17 [1983]). While the presentence report indicated that the defendant had been diagnosed with manic depression, paranoia, and epilepsy and prescribed medication for these conditions, there is no basis in the record to support his contention that he lacked the capacity to understand the proceedings against him or that he was unable to assist in his defense (see
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 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). 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