Opinion
2019–08346 Ind. No. 18–166
04-07-2021
The PEOPLE, etc., respondent, v. Henry MARTINEZ–GALDAMEZ, appellant.
The Ugell Law Firm, P.C., New City, N.Y. (Scott B. Ugell of counsel), for appellant. Thomas E. Walsh II, District Attorney, New City, N.Y. (Jacob B. Sher of counsel), for respondent.
The Ugell Law Firm, P.C., New City, N.Y. (Scott B. Ugell of counsel), for appellant.
Thomas E. Walsh II, District Attorney, New City, N.Y. (Jacob B. Sher of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered June 5, 2019, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged, by grand jury indictment, with assault in the first degree and assault in the second degree. The charges related to an incident in which the defendant allegedly struck a victim with a bottle during an altercation at a bar.
The County Court providently exercised its discretion in denying, without a hearing, the defendant's motions to withdraw his plea of guilty. A motion to withdraw a plea of guilty, as well as the nature and extent of the fact-finding inquiry, rests within the sound discretion of the court, and generally will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3] ; People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 ; People v. Stephens, 186 A.D.3d 751, 127 N.Y.S.3d 286 ; People v. Jemmott, 125 A.D.3d 1005, 1006, 5 N.Y.S.3d 447 ). Here, the defendant did not set forth sufficient allegations to warrant either withdrawal of his plea or a hearing on the motions (see People v. Goberman, 164 A.D.3d 602, 603, 78 N.Y.S.3d 680 ; People v. Innocent, 132 A.D.3d 696, 697, 17 N.Y.S.3d 505 ; People v. Jemmott, 125 A.D.3d at 1006, 5 N.Y.S.3d 447 ).
The defendant has not preserved for appellate review his contention that the County Court failed to comply with CPL 390.20 and 380.50 in connection with his sentencing proceeding (see People v. Anderson, 163 A.D.3d 981, 77 N.Y.S.3d 646 ; People v. Crosby, 133 A.D.3d 681, 682, 20 N.Y.S.3d 100 ; People v. McGinn, 96 A.D.3d 977, 978, 946 N.Y.S.2d 489 ). In any event, the record shows that the court ordered a presentence investigation and report, and that the presentence report was completed several months prior to the date of sentencing. The defendant offered no evidence that the court did not receive or consider the presentence report prior to sentencing. Thus, the record does not show that the court failed to comply with the requirements of CPL 390.20(1) (see People v. Evans, 193 A.D.2d 960, 961, 598 N.Y.S.2d 96 ; People v. Carmello, 114 A.D.2d 965, 495 N.Y.S.2d 230 ; see also People v. Rodriguez, 162 A.D.3d 513, 514, 74 N.Y.S.3d 856 ). In addition, the record shows that the court substantially complied with the requirements of CPL 380.50 (see People v. Desius, 188 A.D.3d 1626, 1629, 135 N.Y.S.3d 214 ; People v. Anderson, 163 A.D.3d at 981, 77 N.Y.S.3d 646 ; People v. Schwickrath, 40 A.D.3d 1218, 1219, 834 N.Y.S.2d 751 ).
The defendant's claim of 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. Pelzer, 189 A.D.3d 1268, 1268–1269, 134 N.Y.S.3d 222 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
MASTRO, A.P.J., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.