Opinion
2011–09513 Ind. No. 10116/07
10-31-2017
The PEOPLE, etc., respondent, v. Javon DOWLING, appellant.
Edmond R. Shinn, Forest Hills, N.Y. (Justin C. Bonus of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Edmond R. Shinn, Forest Hills, N.Y. (Justin C. Bonus of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered February 9, 2011, convicting him of conspiracy in the second degree and criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
A motion to withdraw a plea of guilty is addressed to the sound discretion of the Supreme Court, and, as a general rule, its determination will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3] ; People v. Seeber, 4 N.Y.3d 780, 780–781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Douglas, 83 A.D.3d 1092, 1092, 921 N.Y.S.2d 324 ).
Here, the defendant's contentions, in both his main brief and his pro se supplemental brief, that defense counsel's ineffectiveness affected the voluntariness of his plea 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 ). 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 as it relates to the voluntariness of his plea (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 ). Accordingly, 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, 806, 940 N.Y.S.2d 314 ; People v. Maxwell , 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
Moreover, the record reflects that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ). Accordingly, under the circumstances, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty (see People v. Zamani, 145 A.D.3d 1046, 1047, 42 N.Y.S.3d 852 ; People v. Upson, 134 A.D.3d 1058, 1058, 21 N.Y.S.3d 688 ).The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.
LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.