Opinion
2014-06681 Ind. No. 13-00255.
01-27-2016
The PEOPLE, etc., respondent, v. Victor MARRYSHOW, appellant.
Arleen Lewis, Blauvelt, N.Y., for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
Arleen Lewis, Blauvelt, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered June 24, 2014, convicting him of course of sexual conduct against a child in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The County Court did not improvidently exercise its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty is addressed to the sound discretion of the court, and its determination generally will not be disturbed absent an improvident exercise of discretion (see CPL 220.603; People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Edmunson, 109 A.D.3d 621, 970 N.Y.S.2d 635; People v. Dazzo, 92 A.D.3d 796, 938 N.Y.S.2d 446; People v. Caruso, 88 A.D.3d 809, 930 N.Y.S.2d 668). The court's remarks at the outset of the plea proceeding, that the People's plea offer would no longer be available if the defendant proceeded with the suppression hearing, were informative and not coercive (see e.g. People v. Solis, 111 A.D.3d 654, 655, 974 N.Y.S.2d 132; People v. Strong, 80 A.D.3d 717, 914 N.Y.S.2d 679; People v. Bravo, 72 A.D.3d 697, 698, 899 N.Y.S.2d 280). Likewise, the court's statement to the defendant, who was not a United States citizen, that his plea of guilty would lead to his removal from the United States, properly advised the defendant of the consequences of his plea and was not coercive (see People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617; People v. Morocho, 129 A.D.3d 1107, 1108, 11 N.Y.S.3d 684; People v. Taveras, 123 A.D.3d 745, 997 N.Y.S.2d 490). Furthermore, the defendant's unequivocal acknowledgment under oath during the plea proceeding that no one had threatened, coerced, or influenced him against his will into pleading guilty and that he was satisfied with the services provided by his attorneys belied his subsequent claims that he was coerced by the court and his former attorney, and that his former attorney was ineffective (see People v. Bennett, 115 A.D.3d 973, 974, 982 N.Y.S.2d 554; People v. Howard, 109 A.D.3d 487, 488, 970 N.Y.S.2d 86; People v. Tavares, 103 A.D.3d 820, 962 N.Y.S.2d 196; People v. Martinez, 78 A.D.3d 966, 967, 910 N.Y.S.2d 684). Accordingly, the court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty.
The defendant's contention that he was not afforded the effective assistance of counsel is based, 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 A.D.3d 1108, 1109, 933 N.Y.S.2d 386; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).