| People v Jamison |
| 2021 NY Slip Op 04668 [197 AD3d 569] |
| August 11, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Karsheen R. Jamison, Appellant. |
Salvatore C. Adamo, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Michael G.Hayes, J.), rendered May 21, 2019, convicting him of criminal possession of a weapon in thesecond degree, upon his plea of guilty, and sentencing him, upon his adjudication as a secondviolent felony offender, to a determinate term of imprisonment of 13 years plus 5 years ofpostrelease supervision.
Ordered that the judgment is modified, on the law, by vacating the defendant's adjudicationas a second violent felony offender and the sentence imposed thereon; as so modified, thejudgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for ahearing to determine whether one of the defendant's convictions in the State of Florida for armedrobbery and possession of a weapon by a felon would qualify as a predicate violent felony inNew York pursuant to Penal Law § 70.04 (1) (b) (i), and for resentencingthereafter.
The defendant was convicted of criminal possession of a weapon in the second degree, uponhis plea of guilty. The County Court adjudicated and sentenced the defendant as a second violentfelony offender.
"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 [that] discretion" (People vBennett, 115 AD3d 973, 973-974 [2014] [internal quotation marks omitted]; seeCPL 220.60 [3]; People vBalbuenatorres, 179 AD3d 828, 829 [2020]). "Generally, a plea of guilty may not bewithdrawn absent some evidence of innocence, fraud, or mistake in its inducement" (People v Jackson, 170 AD3d 1040,1040 [2019] [internal quotation marks omitted]).
Here, the County Court providently exercised its discretion in denying, without a hearing, thedefendant's motion to withdraw his plea of guilty. Reviewing the record as a whole, we concludethat the defendant's plea of guilty was knowingly, voluntarily, and intelligently made (see People v Bhuiyan, 181 AD3d699, 700 [2020]; People v Jackson, 170 AD3d at 1040-1041).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter 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]; see People v Evans, 16 NY3d 571,575 n 2 [2011]). Since the defendant's claim of ineffective assistance of counsel cannot beresolved without reference to matter outside the record, a CPL 440.10 [*2]proceeding is the appropriate forum for reviewing the claim in itsentirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
However, the County Court should not have adjudicated and sentenced the defendant as asecond violent felony offender without first holding a hearing to determine if one of the Floridacrimes for which the defendant was convicted would qualify as a predicate violent felonypursuant to Penal Law § 70.04 (1) (b) (i) (see People v Muniz, 74 NY2d464, 468 [1989]; People v Thomas,71 AD3d 1061, 1062 [2010]). The Florida robbery statute under which the defendant wasconvicted (see Fla Stat § 812.13) criminalizes several different acts, some ofwhich, if committed in New York, would constitute a violent felony pursuant to Penal Law§§ 160.15 or 160.10, and some of which would not. Further, the Floridastatute under which the defendant was convicted of possession of a weapon by a felon(see Fla Stat § 790.23 [1]) does not set forth elements that are equivalent toa violent felony in New York (see Penal Law § 70.02 [1]). Under suchcircumstances, resort to the Florida accusatory instrument, among other things, would be neededto ascertain the particular act or acts underlying the defendant's convictions for robbery andpossession of a weapon by a felon in Florida to determine whether the underlying acts wereequivalent to a violent felony in New York (see People v Muniz, 74 NY2d at 468;People v Gonzalez, 61 NY2d 586, 590-591 [1984]).
Accordingly, the matter must be remitted to the County Court, Dutchess County, for ahearing to determine whether one of the defendant's convictions in the State of Florida for armedrobbery and possession of a weapon by a felon were based on acts which would constitute aviolent felony pursuant to Penal Law § 70.04 (1) (b) (i), and for resentencingthereafter (see People v Boston, 79AD3d 1140, 1141-1142 [2010]; People v Thomas, 71 AD3d at 1062).
In light of our determination, we need not reach the defendant's remaining contention. Dillon,J.P., Chambers, Austin and Duffy, JJ., concur.