| People v Bennett |
| 2014 NY Slip Op 02070 [115 AD3d 973] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darrian L. Bennett, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hinrichs, J.), rendered October 13, 2010, convicting him of manslaughter in the firstdegree, criminal possession of a weapon in the second degree, and criminal sale ofmarijuana in the fifth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid because therecord does not demonstrate that the defendant understood the distinction between theright to appeal and other trial rights forfeited incident to his plea of guilty (see People v Moyett, 7 NY3d892, 893 [2006]; People vLopez, 6 NY3d 248, 257 [2006]; People v Jacob, 94 AD3d 1142, 1143-1144 [2012]).Nevertheless, by pleading guilty, the defendant forfeited appellate review of his claim ofineffective assistance of counsel to the extent that the claim does not directly involve theplea and sentence negotiation (see People v Petgen, 55 NY2d 529, 535 n 3[1982]; People v Dunne,106 AD3d 928 [2013]; People v Fakhoury, 103 AD3d 664 [2013]; People v Soria, 99 AD3d1027 [2012]).
"The decision to permit a defendant to withdraw a previously entered plea of guiltyrests within the sound discretion of the court and generally will not be disturbed absentan improvident exercise of discretion" (People v Howard, 109 AD3d 487, 487 [2013]; see People v Crawford, 106AD3d 832, 833 [2013]; People v Jacob, 94 AD3d at 1143; CPL 220.60 [3])."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 Howard,109 AD3d at 487 [internal quotation marks omitted]; see People v Brown, 14 NY3d 113, 116 [2010]; People v Anderson, 98 AD3d524 [2012]).
Here, the defendant's contention that he was coerced into pleading guilty by hisattorney's ineffectiveness is belied by his statements during the plea proceeding, in whichhe acknowledged under oath that he was satisfied with his counsel's representation, thathe had not been forced into pleading guilty, and that he was entering the plea freely andvoluntarily (see People vHoward, 109 AD3d 487 [2013]; People v Perez, 51 AD3d 1043 [2008]). The defendant'spostplea assertion of [*2]innocence is unsupported by therecord and did not afford a basis for withdrawal of the plea of guilty (see People v Douglas, 83AD3d 1092, 1093 [2011]). Since the defendant's motion to withdraw his plea ofguilty was premised on unsubstantiated and conclusory allegations belied by the record,the County Court properly denied the motion without conducting a hearing (see People v Shorter, 106AD3d 1115 [2013]; People v Douglas, 83 AD3d at 1093).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe 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 (seePeople v McBride, 103 AD3d 920, 921 [2013]; People v Ropiza, 100 AD3d935, 936 [2012]; cf. People v Crump, 53 NY2d 824 [1981]; People vBrown, 45 NY2d 852 [1978]). Since the defendant's claim of ineffective assistanceof counsel cannot be resolved without reference to matter outside the record, a CPL440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]). Eng, P.J., Dillon, Maltese and Duffy, JJ., concur.