| People v Jackson |
| 2019 NY Slip Op 02116 [170 AD3d 1040] |
| March 20, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Bobby Jackson, Appellant. |
Clinton W. Calhoun III, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Brian R. Pouliot and WilliamC. Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E.Warhit, J.), rendered September 5, 2017, convicting him of murder in the second degree, criminalpossession of a weapon in the second degree, and reckless endangerment in the first degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although the People correctly contend that the defendant's waiver of his right to appeal isvalid (see People v Smith, 112AD3d 759, 759 [2013]), the defendant's contention that the County Court should havegranted his motion to withdraw his plea because it was not entered knowingly, voluntarily, andintelligently survives such a valid waiver (see People v Manragh, 150 AD3d 762 [2017], affd 32NY3d 1101 [2018]; People vTowns, 135 AD3d 974 [2016]). Nonetheless, we agree with the court's determinationdenying, without a hearing, the defendant's motion to withdraw his plea of guilty. A motion towithdraw a plea of guilty rests within the sound discretion of the court, and generally will not bedisturbed absent an improvident exercise of discretion (see CPL 220.60 [3]; People vAlexander, 97 NY2d 482, 485 [2002]; People v Boria, 157 AD3d 811 [2018]). "Generally, a plea of guiltymay not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement"(People v Rodriguez, 142 AD3d1189, 1190 [2016] [internal quotation marks omitted]). When a defendant moves towithdraw a plea of guilty, the nature and extent of the fact-finding inquiry rests largely in thediscretion of the court, and a hearing will be granted only in rare instances (see People vTinsley, 35 NY2d 926 [1974]; People v Rodriguez, 154 AD3d 968, 969 [2017]).
Here, the record establishes that the defendant knowingly, voluntarily, and intelligentlyentered his plea of guilty (see People v Boria, 157 AD3d at 812; People v Smith, 148 AD3d 939[2017]). The defendant's contention that he was coerced into pleading guilty is premised onunsubstantiated and conclusory allegations and belied by his statements under oath at the pleaproceeding. Thus, the statements were insufficient to warrant vacatur of his plea or a hearing onthe issue (see People v Ward, 140AD3d 903 [2016]). Moreover, the mere fact that defense counsel may have advised thedefendant as to the risks of trial, including the possibility of consecutive sentences uponconviction, is insufficient to establish coercion (see People v Gomez, 137 AD3d 1161 [2016]; People v Holcombe, 116 AD3d1063 [2014]).
The defendant's valid waiver of his right to appeal precludes appellate review of anycontention that he was deprived of the effective assistance of counsel except to the extent that thealleged ineffective assistance affected the voluntariness of his plea (see People v Dancy, 156 AD3d717 [2017]; People v Upson,134 AD3d 1058 [2015]). The defendant's contention that he was deprived of the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, on matteroutside the record and, thus, constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108,1109 [2011]; see People v Evans, 16NY3d 571, 575 n 2 [2011]). As the defendant's claim of ineffective assistance of counselcannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding isthe appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109). Dillon, J.P., Cohen, Duffy and Christopher, JJ., concur.