| People v King |
| 2014 NY Slip Op 02080 [115 AD3d 986] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darnell King, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Laurie G.Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Zambelli, J.), rendered July 5, 2011, convicting him of criminal possession of a weaponin the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contentions that his plea was not knowingly, voluntarily, orintelligently entered because it was precipitated by the trial court's improper denial of hismotion to suppress evidence, and by his attorney's failure to properly address this issue,are unpreserved for appellate review since he did not move to withdraw his plea on thesegrounds prior to sentencing (seePeople v Vasquez, 40 AD3d 1134 [2007]). In any event, a motion to withdraw aplea of guilty rests within the sound discretion of the Supreme Court (see People vNixon, 21 NY2d 338, 353-354 [1967], cert denied 393 US 1067 [1969]),whose determination generally will not be disturbed absent an improvident exercise ofdiscretion (see People vDeLeon, 40 AD3d 1008, 1009 [2007]). Here, the Supreme Court providentlyexercised its discretion in denying the defendant's pro se application to withdraw his pleaof guilty. The defendant entered his plea of guilty knowingly, voluntarily, andintelligently, having reached a favorable plea bargain with the assistance of competentcounsel with whose representation the defendant was satisfied (see People v Wiedmer, 71AD3d 1067 [2010]). The defendant's unsubstantiated claim that his plea wasinvoluntary was refuted by his statements during the plea allocution (see id.; People v Torres, 68 AD3d1142 [2009]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on record and, in part, on matter outside therecord and, thus, constitutes a "mixed claim[ ]" of ineffective assistance (see People v Maxwell, 89AD3d 1108, 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 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]).[*2]
Appellate review of the defendant's claimsconcerning his factual allocution at the plea proceeding are precluded by his valid waiverof the right to appeal (seePeople v Lopez, 6 NY3d 248, 255 [2006]; People v Reina, 35 AD3d 509, 509-510 [2006]). Also, bywithdrawing all pending and undecided motions, the defendant waived his right to seekappellate review of those motions (see People v Baez, 52 AD3d 840 [2008]). Moreover, evenif the motions had been decided, the defendant's valid waiver of his right to appeal wouldbar appellate review of the determinations disposing of those motions. Balkin, J.P.,Sgroi, Cohen and LaSalle, JJ., concur.