| People v Dowling |
| 2018 NY Slip Op 00844 [158 AD3d 640] |
| February 7, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Javon Dowling, Appellant. |
Edmond R. Shinn, Forest Hills, NY (Justin C. Bonus of counsel), for appellant, and appellantpro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K.Chun, J.), rendered February 9, 2011, convicting him of conspiracy in the second degree andcriminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
A motion to withdraw a plea of guilty is addressed to the sound discretion of the SupremeCourt, and, as a general rule, its determination will not be disturbed absent an improvidentexercise of discretion (see CPL 220.60 [3]; People v Seeber, 4 NY3d 780, 780-781 [2005]; People v Douglas, 83 AD3d 1092,1092 [2011]).
Here, the defendant's contentions, in both his main brief and his pro se supplemental brief,that defense counsel's ineffectiveness affected the voluntariness of his plea is based, in part, onmatter appearing on the record and, in part, on matter outside the record and, thus, constitutes a"mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]). In this case, it isnot evident from the matter appearing on the record that the defendant was deprived of theeffective assistance of counsel as it relates to the voluntariness of his plea (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Accordingly, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
Moreover, the record reflects that the defendant knowingly, voluntarily, and intelligentlyentered his plea of guilty (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]).Accordingly, under the circumstances, the Supreme Court providently exercised its discretion indenying, without a hearing, the defendant's motion to withdraw his plea of guilty (see People v Zamani, 145 AD3d1046, 1047 [2016]; People vUpson, 134 AD3d 1058, 1058 [2015]).
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit. Leventhal, J.P., Austin, Maltese and Iannacci, JJ., concur.