PEOPLE v. JOE (2018)

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered September 22, 2014, convicting defendant, upon his plea of guilty, of conspiracy in the second degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.

The court providently exercised its discretion in denying defendant's motion to withdraw his plea, and in declining to appoint new counsel.  “[T]he nature and extent of the fact-finding procedures on such motions rest largely in the discretion of the court” (People v. Fiumefreddo, 82 N.Y.2d 536, 544, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ).  Here, the parties' written submissions, the plea minutes and the court's recollection of the plea negotiations were sufficient to determine the motion.  The allegedly coercive conduct by defense counsel amounted to nothing more than frank advice about the consequences of going to trial (see e. g. People v. Fulton, 125 A.D.3d 511, 4 N.Y.S.3d 22 [1st Dept. 2015], lv denied 25 N.Y.3d 1072, 12 N.Y.S.3d 623, 34 N.E.3d 374 [2015] ).

By correcting a factual misstatement by his client, counsel did not take an adverse position on the motion (see People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ).  When defendant asserted that his counsel was the law partner of another attorney potentially involved in the case and was thereby conflicted, counsel explained that the partnership had ended years before defendant's case arose.  Counsel's explanation, even if inartfully stated, fell far short of taking an adverse position.

Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record.  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).