| People v Edmunson |
| 2013 NY Slip Op 05699 [109 AD3d 621] |
| August 21, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Eric Edmunson, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Nelson, J.), rendered February 28, 2012, convicting him of attempted burglary in thesecond degree, upon his plea of guilty, and imposing sentence. The appeal brings up forreview the denial of the defendant's pro se motion to withdraw his plea of guilty.
Ordered that the judgment is affirmed.
The County Court did not improvidently exercise its discretion in denying, without ahearing, the defendant's pro se motion to withdraw his plea of guilty. A motion towithdraw a plea of guilty is addressed to the sound discretion of the County Court, andits determination generally will not be disturbed absent an improvident exercise ofdiscretion (see CPL 220.60 [3]; People v Seeber, 4 NY3d 780 [2005]; People v Dazzo, 92 AD3d796 [2012]; People vCaruso, 88 AD3d 809 [2011]; People v Amanze, 87 AD3d 1159 [2011]). The recordestablishes that the defendant knowingly, voluntarily, and intelligently entered his plea ofguilty after being informed of the rights he would be giving up by pleading guilty, andafter having been expressly advised by the County Court that the promised sentenceincluded a period of postrelease supervision (see People v Fiumefreddo, 82NY2d 536, 543 [1993]; People v Harris, 61 NY2d 9, 16-17 [1983]; People v McPherson, 60 AD3d872 [2009]). Furthermore, the record belies the defendant's contention that defensecounsel failed to inform him that his sentence would include postrelease supervision. Inany event, defense counsel's alleged failure to advise the defendant that his sentencewould include postrelease supervision did not affect the defendant's decision to pleadguilty (see People v Melio,6 AD3d 552, 553 [2004]).
The defendant validly waived his right to appeal. At the plea allocution, the CountyCourt sufficiently advised the defendant of the nature of the right to appeal, and therecord establishes that the defendant knowingly, voluntarily, and intelligently waived thatright (see People v Lopez, 6NY3d 248, 255 [2006]; cf.People v Bradshaw, 18 NY3d 257 [2011]). We note that the defendant signed aRockland County pre-printed form waiver, which contained erroneous statements withregard to the waiver of the right to appeal. The written waiver incorrectly stated that thewaiver of the right to appeal precludes review of any claim that the plea was notknowingly, voluntarily, and [*2]intelligently entered into(see People v Adams, 67AD3d 819 [2009]; People vRufa, 57 AD3d 697 [2008]; see also People v Seaberg, 74 NY2d 1, 10[1989]), and any claim that the waiver of the right to appeal was not knowingly,voluntarily, and intelligently made (see People v Callahan, 80 NY2d 273, 280[1992]). Although this written waiver set forth an overly broad explanation of the issuesencompassed by the waiver of the right to appeal, that does not, standing alone, renderthe defendant's waiver involuntary (see People v Pelaez, 100 AD3d 803, 804 [2012]).Nonetheless, a written waiver containing these inaccurate statements should not beutilized in future cases.
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontentions that the sentence imposed was excessive and that he was deprived of theeffective assistance of counsel except to the extent that the alleged ineffective assistanceaffected the voluntariness of his plea (see People v Young, 97 AD3d 771 [2012]; People v Wright, 95 AD3d1046, 1047 [2012]; Peoplev Vargas, 52 AD3d 850, 851 [2008]). The defendant's claim of ineffectiveassistance of counsel with respect to the plea bargaining process is based, in part, uponmatter appearing on the record and, in part, on matter outside the record, and thusconstitutes 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]). Since the defendant's claim of ineffective assistancecannot 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 People v Taylor, 98 AD3d593, 594 [2012]; People vFreeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109;People v Rohlehr, 87 AD3d603, 604 [2011]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.