| People v Bivens |
| 2011 NY Slip Op 07232 [88 AD3d 808] |
| October 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Bivens, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Richard LongworthHecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered December 3, 2009, convicting him of attempted burglary in the thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The decision to permit a defendant to withdraw a previously entered plea of guilty restswithin the sound discretion of the court (see People v Seeber, 4 NY3d 780 [2005]; People v Bruno, 73 AD3d 941[2010]; People v Pooler, 58 AD3d757 [2009]; People v Mann, 32AD3d 865 [2006]; People vKucharczyk, 15 AD3d 595 [2005]), and this determination generally will not bedisturbed absent an improvident exercise of discretion (see People v Bruno, 73 AD3d at941; People v Pooler, 58 AD3d at 757; People v DeLeon, 40 AD3d 1008 [2007]). Contrary to thedefendant's contention, the Supreme Court did not improvidently exercise its discretion indenying, without a hearing, his pro se motion to vacate his plea of guilty (see People vDoherty, 134 AD2d 513 [1987]).
The defendant knowingly, voluntarily, and intelligently entered his negotiated plea of guiltywith the assistance of competent counsel, in exchange for a favorable sentence promise (seePeople v Bruno, 73 AD3d at 941; People v Pooler, 58 AD3d at 757; People v Cummings, 53 AD3d587 [2008]). The defendant's unsubstantiated assertions of innocence at the time ofsentencing were insufficient to justify granting his motion to withdraw his plea of guilty (seePeople v Bruno, 73 AD3d at 941; People v Cummings, 53 AD3d at 587).
To the extent that the defendant's claim that he was deprived of the effective assistance ofcounsel rests on matter which is dehors the record, it is not reviewable on direct appeal (see People v Ramos, 77 AD3d773, 775 [2010]; People vDrago, 50 AD3d 920 [2008]). To the extent this claim may be reviewed on the recordbefore us, we find that counsel provided the defendant with meaningful representation (see People v Perez, 83 AD3d 738,739 [2011], lv denied 17 NY3d 809 [2011]; People v Ramos, 77 AD3d at774-775). Dillon, J.P., Belen, Roman and Miller, JJ., concur.