Opinion
2017–01535 Ind. No. 10720/10
04-17-2019
The PEOPLE, etc., respondent, v. Artic ROGERS, appellant.
Paul Skip Laisure, New York, N.Y. (Nao Terai and Kendra L. Hutchinson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Kaley Hanenkrat on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Nao Terai and Kendra L. Hutchinson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Kaley Hanenkrat on the brief), for respondent.
WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered November 21, 2016, convicting him of kidnapping in the second degree and sex trafficking (two counts), upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed.
The defendant, who was represented by counsel, entered a plea of guilty to kidnapping in the second degree and two counts of sex trafficking.
The determination of a motion to withdraw a plea of guilty rests within the sound discretion of the Supreme Court, and that determination generally will not be disturbed absent an improvident exercise of discretion (see People v. DeLeon , 40 A.D.3d 1008, 1008–1009, 837 N.Y.S.2d 189 ). Here, the record demonstrates that the defendant entered his plea of guilty knowingly, voluntarily, and intelligently (see People v. Wiedmer , 71 A.D.3d 1067, 1067, 896 N.Y.S.2d 686 ). Moreover, the Supreme Court provided the defendant the opportunity to discuss his pro se applications with the court prior to sentencing. In response, the defendant only asked the court to dismiss one of the charges to which he had entered a plea of guilty on the ground that it was "redundant." The court declined to do so, denied his pro se applications, and imposed sentence.
In evaluating the defendant's pro se applications to withdraw his plea, the Supreme Court afforded the defendant a "reasonable opportunity to present his contentions" and, thus, was able to make an informed determination ( People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; see People v. Mitchell , 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 ). The court providently exercised its discretion in denying the defendant's pro se applications to withdraw his plea of guilty.
Contrary to the defendant's contention, the record demonstrates that he also knowingly, voluntarily, and intelligently waived his right to appeal as part of his plea agreement (see People v. Smith, 146 A.D.3d 904, 904–905, 44 N.Y.S.3d 771 ).
The defendant's valid waiver of his right to appeal precludes appellate review of any contention that he was deprived of the effective assistance of counsel except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Dancy, 156 A.D.3d 717, 66 N.Y.S.3d 530 ; People v. Upson, 134 A.D.3d 1058, 21 N.Y.S.3d 688 ). The defendant's contention that he was deprived of the effective 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 ). As 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 (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 ).
Finally, the defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ).
MASTRO, J.P., DUFFY, LASALLE and IANNACCI, JJ., concur.