Opinion
2012-07-5
The PEOPLE, etc., respondent, v. McKinley MILLER, appellant.
Judah Maltz, Kew Gardens, N.Y., for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Cristin N. Connell of counsel; Jeffrey G. Bloomfield on the brief), for respondent.
Judah Maltz, Kew Gardens, N.Y., for appellant, and appellant pro se.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Cristin N. Connell of counsel; Jeffrey G. Bloomfield on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered March 25, 2010, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court improperly accepted his plea of guilty in light of his claim of innocence. However, the record of the plea allocution reveals that the defendant admitted that he was guilty of attempted possession of a loaded firearm, and the Supreme Court made sufficient inquiryto assure that his plea of guilty was knowing, voluntary, and intelligent ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Harris, 61 N.Y.2d 9, 16–17, 471 N.Y.S.2d 61, 459 N.E.2d 170;People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687,cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709).
The defendant's claim that he was deprived of 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 A.D.3d 1108, 1109, 933 N.Y.S.2d 386, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457,cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201 [2011] ). Here, 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 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815;People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314;People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386;People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).