Opinion
2017-11193 Ind. No. 15-00388
05-13-2020
The PEOPLE, etc., Respondent, v. Tomaye WALTERS, Appellant.
Howard Greenberg Law Firm, Brooklyn, N.Y. (Jonathan Rosenberg of counsel), for appellant. Thomas E. Walsh II, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.
Howard Greenberg Law Firm, Brooklyn, N.Y. (Jonathan Rosenberg of counsel), for appellant.
Thomas E. Walsh II, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.
LEONARD B. AUSTIN, J.P. SHERI S. ROMAN JOSEPH J. MALTESE HECTOR D. LASALLE, JJ.
DECISION & ORDER
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 first degree, 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 motion to withdraw his plea of guilty on the ground that it was not knowing, voluntary, and intelligent, and that his counsel's ineffective assistance affected the voluntariness of his plea. Since these issues would survive a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Carpio, 171 A.D.3d 1206, 1206, 96 N.Y.S.3d 908 ; People v. Contreras, 170 A.D.3d 1034, 1035, 95 N.Y.S.3d 325 ), we do not consider the validity of the defendant's purported appeal waiver (see People v. Dunkley, 177 A.D.3d 767, 767, 110 N.Y.S.3d 327 ; People v. Manzanales, 170 A.D.3d 752, 753, 93 N.Y.S.3d 587 ).
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 improvident exercise of discretion (see CPL 220.60[3] ; People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Najera, 170 A.D.3d 753, 754, 94 N.Y.S.3d 175 ). Here, the record supports the County Court's determination that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ). The defendant's postplea assertions that he was innocent and was coerced into pleading guilty contradicted the admissions he made under oath at his plea allocution and were insufficient to warrant granting his motion to withdraw his plea (see People v. Stephensbush, 172 A.D.3d 1108, 1109, 100 N.Y.S.3d 322 ; People v. Smith, 148 A.D.3d 939, 940, 49 N.Y.S.3d 501 ).
The defendant's claim of ineffective assistance of counsel cannot be reviewed on direct appeal because it is based on matters outside the record on appeal (see People v. Shabazz, 174 A.D.3d 824, 825, 105 N.Y.S.3d 511 ; People v. Stevens, 162 A.D.3d 1077, 1078, 75 N.Y.S.3d 539 ). The appropriate vehicle for asserting a claim of ineffective assistance of counsel grounded in allegations 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 A.D.3d 1398, 1399, 99 N.Y.S.3d 656 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ).
AUSTIN, J.P., ROMAN, MALTESE and LASALLE, JJ., concur.