PEOPLE v. RODRIGUEZ (2019)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered March 15, 2017, convicting defendant, upon his plea of guilty, of criminal sexual act in the first degree and forcible touching, and sentencing him to an aggregate term of 12 years, unanimously affirmed.

Even if some of the court's remarks to defendant about the consequences of proceeding to trial should have been avoided, “the record as a whole, including the fact that defendant had already received an extensive opportunity to consider the plea offer and confer with counsel, establishes the voluntariness of the plea” (People v. Wilson, 172 A.D.3d 413, 414, 99 N.Y.S.3d 306 [1st Dept. 2019];  see also People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311 [1998];  People v. Elliot, 137 A.D.3d 715, 27 N.Y.S.3d 386 [1st Dept. 2016], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016] ).

Based on the all circumstances, the court providently exercised its discretion in summarily denying defendant's motion to withdraw his guilty plea (see generally People v. Manor, 27 N.Y.3d 1012, 1013, 35 N.Y.S.3d 272, 54 N.E.3d 1143 [2016] ).  To the extent defendant was claiming innocence, the court viewed the videotape of the incident establishing defendant's guilt, negating any possible defense of intoxication or consent.  Defendant did not advance any other valid basis for withdrawing his plea.

Defendant claims that he received ineffective assistance at the sentencing proceeding because counsel did not argue in support of defendant's pro se plea withdrawal motion.  This claim is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record, including an off-the-record discussion between counsel and defendant during sentencing in connection with the motion (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).  Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the claim may not be addressed on appeal.

We perceive no basis for reducing the sentence.