| People v Murphy |
| 2014 NY Slip Op 00689 [114 AD3d 704] |
| February 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Loronda Murphy, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered March 26, 2013, convicting her of residential mortgage fraud inthe first degree and residential mortgage fraud in the second degree, upon her plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although the defendant validly waived her right to appeal (see People v Gonzalez, 109AD3d 1003, 1004 [2013]; People v Arias, 100 AD3d 914, 915 [2012]; People v Gonzalez, 93 AD3d679 [2012]), her claim with respect to the voluntariness of the plea survives such awaiver (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Solis, 111 AD3d654 [2013]). A motion to withdraw a plea of guilty is addressed to the sounddiscretion of the court, and its determination generally will not be disturbed absent animprovident exercise of discretion (see CPL 220.60 [3]; People v Seeber, 4 NY3d780 [2005]; People vEdmunson, 109 AD3d 621 [2013]; People v Gordon, 107 AD3d 739, 740 [2013]; People v Crawford, 106 AD3d832, 833 [2013]; People vAnderson, 98 AD3d 524 [2012]). Here, the County Court providently exercisedits discretion in denying, without a hearing, the defendant's motion to withdraw her pleaof guilty. The record establishes that the defendant knowingly, voluntarily, andintelligently entered her plea of guilty (see People v Fiumefreddo, 82 NY2d 536,543 [1993]). Her contentions that she was coerced into pleading guilty are belied by herstatements under oath at her plea proceeding, and were insufficient to warrant withdrawalof her plea or a hearing (see People v Crawford, 106 AD3d at 833; People vAnderson, 98 AD3d at 524).
The defendant's valid waiver of her right to appeal precludes appellate review of herclaim that she was deprived of her right to effective assistance of counsel, except to theextent that the alleged ineffective assistance may have affected the voluntariness of herplea (see People vMontalvo, 105 AD3d 774, 775 [2013]; People v Ramos, 77 AD3d 773, 774 [2010]; People v Drago, 50 AD3d920 [2008]). To the extent that the defendant contends that her counsel's conductaffected the voluntariness of her plea, her contention is based, in part, on matterappearing on the record and, in part, upon matter appearing 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 [*2]n 2 [2011], cert denied 565 US —, 132 S Ct325 [2011]; see People v Crawford, 106 AD3d at 833; People v McClurkin, 96 AD3d784, 785-786 [2012]). In this case, it is not evident from the matter appearing on therecord 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 withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Crawford, 106 AD3d at 834;People v McClurkin, 96 AD3d at 785).
The defendant's valid waiver of her right to appeal precludes review of her remainingcontentions that the sentencing proceeding should have been adjourned and that sheshould have been released on bail in order to afford her the opportunity to obtain fundsnecessary to pay restitution (seegenerally People v Lopez, 6 NY3d 248, 255 [2006]; People v Seaberg,74 NY2d at 11). Mastro, J.P., Rivera, Sgroi and Cohen, JJ., concur.