| People v Marryshow |
| 2016 NY Slip Op 00522 [135 AD3d 964] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Victor Marryshow, Appellant. |
Arleen Lewis, Blauvelt, NY, for appellant.
Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Nelson, J.), rendered June 24, 2014, convicting him of course of sexual conduct againsta child in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The County Court did not improvidently exercise its discretion in denying, without ahearing, the defendant's motion to withdraw his plea of guilty. A motion to withdraw aplea of guilty is addressed to the sound discretion of the court, and its determinationgenerally will not be disturbed absent an improvident exercise of discretion (seeCPL 220.60 [3]; People vSeeber, 4 NY3d 780 [2005]; People v Edmunson, 109 AD3d 621 [2013]; People v Dazzo, 92 AD3d796 [2012]; People vCaruso, 88 AD3d 809 [2011]). The court's remarks at the outset of the pleaproceeding, that the People's plea offer would no longer be available if the defendantproceeded with the suppression hearing, were informative and not coercive (see e.g. People v Solis, 111AD3d 654, 655 [2013]; People v Strong, 80 AD3d 717 [2011]; People v Bravo, 72 AD3d697, 698 [2010]). Likewise, the court's statement to the defendant, who was not aUnited States citizen, that his plea of guilty would lead to his removal from the UnitedStates, properly advised the defendant of the consequences of his plea and was notcoercive (see People vPeque, 22 NY3d 168 [2013]; People v Morocho, 129 AD3d 1107, 1108 [2015]; People v Taveras, 123 AD3d745 [2014]). Furthermore, the defendant's unequivocal acknowledgment under oathduring the plea proceeding that no one had threatened, coerced, or influenced him againsthis will into pleading guilty and that he was satisfied with the services provided by hisattorneys belied his subsequent claims that he was coerced by the court and his formerattorney, and that his former attorney was ineffective (see People v Bennett, 115AD3d 973, 974 [2014]; People v Howard, 109 AD3d 487, 488 [2013]; People v Tavares, 103 AD3d820 [2013]; People vMartinez, 78 AD3d 966, 967 [2010]). Accordingly, the court providentlyexercised its discretion in denying the defendant's motion to withdraw his plea ofguilty.
The defendant's contention that he was not afforded 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]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]). In this case, it is not evidentfrom the matter [*2]appearing on the record that thedefendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Sincethe defendant's claim of ineffective assistance of counsel 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 Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]). Rivera, J.P.,Dickerson, Maltese and LaSalle, JJ., concur.