On April 4, 2000, the Appellate Division unanimously affirmed in a brief memorandum. It disposed of the claim that the denial of the motion to withdraw the plea had been erroneous, stating that: "[a]fter sufficient inquiry, the [state] court properly denied defendant's request to withdraw his guilty plea. Defendant's claim of innocence was conclusory and his claim that he misunderstood the minimum period of incarceration involved in his sentence `is not entitled to judicial recognition' ( People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 468 N.E.2d 692). In denying the application, the court properly relied on its recollection of the plea proceedings.

Under these circumstances, a hearing should be held to determine whether defense counsel misinformed defendant as to his maximum sentencing exposure on the indictment and, if so, whether this misinformation led defendant to plead guilty when he otherwise would not have done so. The dissent's reliance on People v Ramos ( 63 NY2d 640) is misplaced. While the Court of Appeals in that case denied the defendant a hearing on his allegation of receiving erroneous sentencing advice, the implication is that the trial court, at the time of his plea, asked the defendant if any other promises were made to him, and he denied any such promises.

e plea colloquy, including the negotiated sentence of three years in prison and five years of postrelease supervision. Defendant affirmed that he understood the terms prior to entering his plea, that he had been provided ample time to confer with counsel and that he was satisfied with his representation, and there is nothing in the record that casts doubt upon counsel's effectiveness ( see People v. Little, 92 A.D.3d 1036, 1037, 937 N.Y.S.2d 482 [2012]; People v. Graham–Harrison, 272 A.D.2d 780, 781, 708 N.Y.S.2d 920 [2000] ). Defendant's unsubstantiated claim of innocence was contradicted by his plea, and County Court was within its discretion to reject it ( see People v. Griffin, 89 A.D.3d 1235, 1236–1237, 932 N.Y.S.2d 252 [2011]; People v. Davis, 250 A.D.2d 939, 940–941, 672 N.Y.S.2d 945 [1998] ). Finally, defendant's contention that he was advised by defense counsel that he would be sentenced to two years in prison if he pleaded guilty involved a matter outside of the record ( see People v. Ramos, 63 N.Y.2d 640–642, 479 N.Y.S.2d 510, 468 N.E.2d 692 [1984]; People v. Johnson, 77 A.D.3d 986, 986, 908 N.Y.S.2d 276 [2010], lv. denied16 N.Y.3d 743, 917 N.Y.S.2d 625, 942 N.E.2d 1050 [2011] ). Accordingly, we find that County Court did not abuse its discretion in denying defendant's motion to withdraw his plea.

Absent any on the record misrepresentations by counsel regarding "early release", the Court is entitled to rely on the record of the plea. ( People v. Ramos 63 NY2d 640). A review of the allocution in this matter reveals that the defendant was fully apprised of the sentence in this case, that he admitted his guilt, was satisfied with his attorneys and that his plea was voluntary. Moreover, it should be noted that it was the Court, not the attorneys, who promised defendant a sentence of two to six years. Under all of the circumstances in this case, an allegation by the defendant that he misinterpreted the plea agreement or that his attorney provided erroneous advice does not warrant the vacating of this judgement.

First, as shown above, Hemstreet should have pursued his ineffective assistance claim on a § 440.10 motion to the trial court as required by New York law. Caballero, 42 F.3d at 740; People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 468 N.E.2d 692 (1984). As New York law clearly establishes that it would have been premature and probably futile to raise such a claim on direct appeal, petitioner could not have suffered prejudice from appellate counsel's failure to do so.

When ruling on a motion to withdraw a guilty plea, the trial court is "entitled to rely on the record before [it] in order to insure that guilty pleas are accorded finality whenever possible." People v. Ramos, 63 N.Y.2d 640, 642-43, 479 N.Y.S.2d 510 (1984). In Ramos, the defendant moved to withdraw his guilty plea because counsel allegedly provided him with erroneous advice on the sentencing ramifications of his plea.

The Second Circuit in Hunter held that "the constitutional requirements of a state court guilty plea include informing a defendant of a mandatory minimum sentence (the lowest possible maximum), but do not include informing him of the minimum portion of his sentence a court may require him to serve" before becoming eligible for parole. Hunter, 616 F.2d at 61; see also People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 468 N.E.2d 692 (1984). For example, a defendant convicted of a class B felony, such as sodomy in the first degree as was Petitioner in this case, must be sentenced to a maximum term of imprisonment that "must be at least five years and must not exceed twenty-five years."

Under New York law claims of ineffective assistance of trial counsel ordinarily must be addressed to the trial court in a § 440.10 motion rather than to the Appellate Division on direct appeal because they ordinarily relate to matters of which only the trial court is aware, require knowledge and/or review of the entire proceedings at the trial level and/or of which no record was ever made at the trial level and, thus, would require the making of an additional record before the Appellate Division would be able to review what occurred. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Mercado v. Senkowski, 736 F. Supp. 28, 29 (E.D.N.Y. 1989); Walker v. Dalsheim, 669 F. Supp. 68, 70-72 (S.D.N.Y. 1987); United States ex rel. LaSalle v. Smith, 632 F. Supp. 602, 603, 605-06 (E.D.N.Y. 1986); People v. Ramos, 63 N Y2d 640, 643, 479 N.Y.S.2d 510, 512, 468 N.E.2d 692, 694 (1984); People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978). When particular claimed instances of trial counsel error are matters as to which the record is already clear, however, the claim can be reviewed by the appellate court and should be raised on direct appeal.

Accord: People v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't 1992). See also Walker v. Dalsheim, 669 F. Supp. at 70-72; People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 512, 468 N.E.2d 692, 694 (1984); People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978). The essence of an application for a writ of error coram nobis is that it is addressed to the very court which rendered the judgment or order from which relief is sought.

28 N.Y.2d at 287, 321 N.Y.S.2d at 577, 270 N.E.2d at 305. See also People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 512, 468 N.E.2d 692 (1984); People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978); People v. Roberts, 89 A.D.2d 912, 912, 453 N.Y.S.2d 727, 729 (2d Dep't 1982) (mem.). In Sanchez v. LeFevre, No. 86-1356 (S.D. N.Y. May 22, 1986) [Available on WESTLAW, DCT database], a habeas corpus petitioner argued that his trial counsel had rendered ineffective assistance because he had not challenged the purported probable cause for his arrest and subsequent lineup identification.