| People v Najera |
| 2019 NY Slip Op 01620 [170 AD3d 753] |
| March 6, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eduardo Najera, Appellant. |
Mark Diamond, New York, NY, for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, NY (Amanda M. Doty of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (David S.Zuckerman, J.), rendered August 29, 2017, convicting him of rape in the first degree, upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged by indictment with predatory sexual assault against a child, rapein the first degree, attempted rape in the first degree, sexual abuse in the first degree, andendangering the welfare of a child. The defendant entered a plea of guilty to rape in the firstdegree. As part of the plea agreement, the defendant orally waived his right to appeal andexecuted a written waiver of the right to appeal. Subsequently, the defendant's motion for theassignment of new counsel was granted, and thereafter, the defendant moved to withdraw hisplea of guilty. After the defendant's motion was denied, the County Court sentenced thedefendant in accordance with the plea agreement.
The decision to permit a defendant to withdraw a previously entered plea of guilty restswithin the sound discretion of the court and generally will not be disturbed absent an improvidentexercise of discretion (see CPL 220.60 [3]; People v Seeber, 4 NY3d 780 [2005]; People v Caruso, 88 AD3d 809[2011]; People v Duncan, 78 AD3d1193 [2010]). "When a defendant moves to withdraw a guilty plea, the nature and extent ofthe fact-finding inquiry 'rest[s] largely in the discretion of the Judge to whom the motion is made'and a hearing will be granted only in rare instances" (People v Brown, 14 NY3d 113, 116 [2010], quoting People vTinsley, 35 NY2d 926, 927 [1974]; see People v Howard, 109 AD3d 487 [2013]; People v Dazzo, 92 AD3d 796[2012]).
Here, the record supports the County Court's determination denying, without a hearing, thedefendant's motion to withdraw his plea of guilty, as his plea was entered knowingly, voluntarily,and intelligently (see People vJohnson, 97 AD3d 695 [2012]; People v Dazzo, 92 AD3d at 796-797; Peoplev Caruso, 88 AD3d at 810). The defendant's postplea statements of innocence wereunsubstantiated, conclusory, and belied by the plea proceeding, during which he acknowledgedunder oath that he was satisfied with his counsel's representation, that he had not been coercedinto pleading guilty, and that he was entering the plea freely and voluntarily (see People vHoward, 109 AD3d at 488; People vPerez, 51 AD3d 1043 [2008]; People v Gedin, 46 AD3d 701 [2007]), and by the statements hemade to the police (see People vInnocent, 132 AD3d 696, 697 [2015]; People v Perez, 83 AD3d 738, 739 [2011]; People v Oquendo, 17 AD3d 701[2005]; cf. People v Haddock, 79AD3d 1148, 1149 [2010]).
The defendant's contention that his plea of guilty was involuntary because the County Courtdid not advise him of each of the federal constitutional rights he was forfeiting by pleadingguilty, and because the prosecutor directed questions as part of the factual allocution to which heprovided monosyllabic, one-word responses, is unpreserved for appellate review since thedefendant did not raise this issue in his presentence motion to withdraw his plea of guilty orotherwise raise this issue before the County Court (see People v Lopez, 71 NY2d 662,665 [1988]; People v Legnini, 61AD3d 895 [2009]; People vVelazquez, 21 AD3d 388 [2005]; People v Bowers, 128 AD2d 541, 542 [1987]).In any event, the defendant's contentions are without merit (see People v Tyrell, 22 NY3d 359, 365 [2013]; People vHarris, 61 NY2d 9, 16 [1983]; People v Singh, 158 AD3d 824, 825 [2018]; People v Dancy, 156 AD3d 717[2017]; People v Morocho, 129AD3d 1107, 1108 [2015]).
The defendant's valid waiver of his right to appeal (see People v Sanders, 25 NY3d 337 [2015]; People v Ramos, 7 NY3d 737, 738[2006]; People v Muniz, 91 NY2d 570, 575 [1998]; cf. People v Pelaez, 100 AD3d 803 [2012]) precludes appellatereview of his claim that he was deprived of his right to the effective assistance of counsel, exceptto the extent that the alleged ineffective assistance may have affected the voluntariness of hisplea (see People v Fisher, 121 AD3d1013, 1014 [2014]; People vMontalvo, 105 AD3d 774, 775 [2013]). Insofar as the defendant contends that hiscounsel's conduct affected the voluntariness of the plea, the contention is based on matter dehorsthe record and, thus, cannot be reviewed on direct appeal (see People v Granger, 122 AD3d 940, 942 [2014]; People v Folger, 110 AD3d 736[2013]; People v Rohlehr, 87 AD3d603, 604 [2011]). The appropriate vehicle to allege ineffective assistance of counsel basedon matter dehors the record is pursuant to CPL 440.10 (see People v Folger, 110 AD3d 736 [2013]; People vRohlehr, 87 AD3d at 604). Rivera, J.P., Roman, Cohen and Hinds-Radix, JJ., concur.