Opinion
2019–10420 Ind. No. 1233/18
12-01-2021
The PEOPLE, etc., respondent, v. Jose LOPEZ, appellant.
Laurette D. Mulry, Riverhead, NY (Felice Milani of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello, Marion Tang, and Glenn Green of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Felice Milani of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello, Marion Tang, and Glenn Green of counsel), for respondent.
REINALDO E. RIVERA, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Richard Ambro, J.), rendered August 13, 2019, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
"The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of [that] discretion" ( People v. Bennett, 115 A.D.3d 973, 973–974, 982 N.Y.S.2d 554 [internal quotation marks omitted]; see CPL 220.60[3] ; People v. Balbuenatorres, 179 A.D.3d 828, 829, 113 N.Y.S.3d 890 ). "Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement" ( People v. Jackson, 170 A.D.3d 1040, 1040, 96 N.Y.S.3d 330 [internal quotation marks omitted]).
Here, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. Viewing the record as a whole, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Bhuiyan, 181 A.D.3d 699, 700, 120 N.Y.S.3d 400 ; People v. Jackson, 170 A.D.3d at 1040–1041, 96 N.Y.S.3d 330 ).
The defendant's contention that his attorney rendered ineffective 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 ). 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, and we decline to review the claim on this direct appeal (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 ). The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., CHRISTOPHER, WOOTEN and ZAYAS, JJ., concur.