| People v Walters |
| 2020 NY Slip Op 02813 [183 AD3d 765] |
| May 13, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tomaye Walters, Appellant. |
Howard Greenberg Law Firm, Brooklyn, NY (Jonathan Rosenberg of counsel), forappellant.
Thomas E. Walsh II, District Attorney, New City, NY (Carrie A. Ciganek ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Kevin F. Russo, J.), rendered October 4, 2017, convicting him of robbery in the firstdegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
On appeal, the defendant contends that the County Court erred in denying his motionto withdraw his plea of guilty on the ground that it was not knowing, voluntary, andintelligent, and that his counsel's ineffective assistance affected the voluntariness of hisplea. Since these issues would survive a valid waiver of the right to appeal (seePeople v Seaberg, 74 NY2d 1, 10 [1989]; People v Carpio, 171 AD3d 1206, 1206 [2019]; People v Contreras, 170 AD3d1034, 1035 [2019]), we do not consider the validity of the defendant's purportedappeal waiver (see People vDunkley, 177 AD3d 767, 767 [2019]; People v Manzanales, 170 AD3d 752, 753 [2019]).
A motion to withdraw a plea of guilty rests within the sound discretion of the court,and generally the court's determination will not be disturbed absent an improvidentexercise of discretion (see CPL 220.60 [3]; People v Seeber, 4 NY3d 780 [2005]; People v Najera, 170 AD3d753, 754 [2019]). Here, the record supports the County Court's determination thatthe defendant's plea of guilty was entered knowingly, voluntarily, and intelligently(see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). The defendant's postpleaassertions that he was innocent and was coerced into pleading guilty contradicted theadmissions he made under oath at his plea allocution and were insufficient to warrantgranting his motion to withdraw his plea (see People v Stephensbush, 172 AD3d 1108, 1109 [2019];People v Smith, 148 AD3d939, 940 [2017]).
The defendant's claim of ineffective assistance of counsel cannot be reviewed ondirect appeal because it is based on matters outside the record on appeal (see People v Shabazz, 174AD3d 824, 825 [2019]; People v Stevens, 162 AD3d 1077, 1078 [2018]). Theappropriate vehicle for asserting a claim of ineffective assistance of counsel grounded inallegations referring to facts outside the record is a motion pursuant to CPL 440.10,where matters dehors the record may be considered (see People v Avilacruz, 172 AD3d 1398, 1399 [2019]; People v Rohlehr, 87 AD3d603, 604 [2011]). Austin, J.P., Roman, Maltese and LaSalle, JJ., concur.