| People v Haywood |
| 2014 NY Slip Op 07683 [122 AD3d 769] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Thomas Haywood, Appellant. |
Thomas R. Villecco, Jericho, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff of counsel;Christopher Cellante on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Warhit, J.), rendered August 13, 2013, convicting him of burglary in the second degree(two counts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he validly waived his right to appeal (see People v Sanders, 112AD3d 748 [2013], lv granted 22 NY3d 1160 [2014]; People v Arias, 100 AD3d914 [2012]; People vGonzalez, 93 AD3d 679 [2012]; cf. People v Brown, 122 AD3d 133 [2d Dept 2014]). However, his claim regarding the voluntariness of hisplea survives such a waiver (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 County Court, and, as a general rule, its determination will not bedisturbed absent an improvident 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 his pleaof guilty. The record establishes that the defendant knowingly, voluntarily, andintelligently entered a plea of guilty (see People v Fiumefreddo, 82 NY2d 536,543 [1993]). To the extent that the defendant argues that he felt compelled to pleadguilty, such contention is belied by his statements under oath at the plea proceeding, andis insufficient to warrant withdrawal of the plea or a hearing (see People vCrawford, 106 AD3d at 833; People v Anderson, 98 AD3d at 524).
The defendant's valid waiver of his right to appeal precludes appellate review of hisclaim that he was deprived of the effective assistance of counsel, except to the extent thatsuch alleged ineffective assistance may have affected the voluntariness of the plea (see People v Montalvo, 105AD3d 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 his counsel's conductaffected the voluntariness of the plea, such 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 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 572, 575 n 2 [2011]; People v Crawford, 106 AD3d at 833; People v McClurkin, 96 AD3d784, 785-786 [2012]). Here, it is not evident from the matter appearing on the recordthat the defendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]).Inasmuch as 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 this claim in its entirety (see People v Crawford, 106 AD3d at 834;People v McClurkin, 96 AD3d at 785). Chambers, J.P., Sgroi, Miller and Barros,JJ., concur.