PEOPLE v. KESS (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Steven A. Pilewski, J.), rendered February 25, 2025, convicting him of criminal mischief in the third degree and aggravated harassment in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The County Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty.  “ ‘The decision as to whether 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 discretion’ ” (People v. Gerald, 197 A.D.3d 1324, 1326, 153 N.Y.S.3d 588, quoting People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627;  see People v. Brickhouse, 179 A.D.3d 943, 944, 114 N.Y.S.3d 238).  “ ‘Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement’ ” (People v. Jackson, 170 A.D.3d 1040, 1040, 96 N.Y.S.3d 330, quoting People v. Rodriguez, 142 A.D.3d 1189, 1190, 38 N.Y.S.3d 224).  Here, the record establishes that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Stevens, 203 A.D.3d 1181, 1182, 163 N.Y.S.3d 412;  People v. Penaranda, 178 A.D.3d 858, 858, 111 N.Y.S.3d 553 ).

The defendant's contention that his plea of guilty was not knowing, voluntary, or intelligent due to the 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 of counsel (People v. Meyn, 193 A.D.3d 1080, 1080, 146 N.Y.S.3d 305;  see People v. Jackson, 170 A.D.3d at 1041, 96 N.Y.S.3d 330).  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. Meyn, 193 A.D.3d at 1080–1081, 146 N.Y.S.3d 305).

BARROS, J.P., VOUTSINAS, VENTURA and GOLIA, JJ., concur.