| People v Crawford |
| 2013 NY Slip Op 03340 [106 AD3d 832] |
| May 8, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Meldon Crawford, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R.Eisner, and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered December 4, 2009, convicting him of course of sexual conductagainst a child in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
"The decision as to whether to permit a defendant to withdraw a previously enteredplea of guilty rests within the sound discretion of the court and generally will not bedisturbed absent an improvident exercise of discretion" (People v Jacob, 94 AD3d1142, 1143 [2012]; see CPL 220.60 [3]; People v Alexander, 97NY2d 482, 483-484 [2002]). "Generally, a plea of guilty may not be withdrawn absentsome evidence of innocence, fraud, or mistake in its inducement" (People v Smith, 54 AD3d879, 880 [2008]; see People v Jacob, 94 AD3d at 1143).
"When a defendant moves to withdraw a guilty plea, the nature and extent of thefact-finding inquiry 'rest[s] largely in the discretion of the Judge to whom the motion ismade' and a hearing will be granted only in rare instances" (People v Brown, 14 NY3d113, 116 [2010], quoting People v Tinsley, 35 NY2d 926, 927 [1974];see People v Smith, 54 AD3d at 880). "Where, however, the record raises alegitimate question as to the voluntariness of the plea, an evidentiary hearing is required"(People v Brown, 14 NY3d at 116).
Here, the Supreme Court providently exercised its discretion in denying thedefendant's motion to withdraw his plea of guilty without conducting a hearing. Thedefendant's postplea assertions regarding his innocence and the documents cited insupport of his motion were insufficient to warrant withdrawal of his plea or a hearing(see People v Friedman, 39 NY2d 463, 467 [1976]; People v Douglas, 83 AD3d1092, 1093 [2011]; Peoplev Dazzo, 92 AD3d 796, 796 [2012]). Furthermore, the defendant's claim that hewas coerced into pleading guilty is belied by his statements under oath acknowledgingthat he was voluntarily pleading guilty, and that nobody had made any threats or forcedhim to enter his plea (see People v Dazzo, 92 AD3d at 796; People vDouglas, 83 AD3d at 1093; see also People v Kosse, 94 AD3d 908, 908 [2012]).[*2]
The defendant's contention that his attorney wasineffective is based, in part, on matter appearing on the record and, in part, on matteroutside the record, and thus constitutes a " 'mixed claim[ ]' " of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], certdenied 565 US —, 132 S Ct 325 [2011]). In this case, it is not evident fromthe matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]; People v McClurkin, 96 AD3d 784, 785 [2012]; People v Bruno, 73 AD3d941, 942 [2010]). Since the defendant's claim of ineffective assistance of counselcannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see Peoplev McClurkin, 96 AD3d at 785; see generally People v Freeman, 93 AD3d 805 [2012];People v Maxwell, 89 AD3d at 1109). Rivera, J.P., Leventhal, Austin and Miller,JJ., concur.