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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Bobby JACKSON, Appellant.


Decided: March 20, 2019

MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ. Clinton W. Calhoun III, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.


Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E. Warhit, J.), rendered September 5, 2017, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Although the People correctly contend that the defendant's waiver of his right to appeal is valid (see People v. Smith, 112 A.D.3d 759, 759, 976 N.Y.S.2d 564), the defendant's contention that the County Court should have granted his motion to withdraw his plea because it was not entered knowingly, voluntarily, and intelligently survives such a valid waiver (see People v. Manragh, 150 A.D.3d 762, 51 N.Y.S.3d 431, affd 32 N.Y.3d 1101, 90 N.Y.S.3d 623, 114 N.E.3d 1076; People v. Towns, 135 A.D.3d 974, 22 N.Y.S.3d 914).  Nonetheless, we agree with the court's determination denying, without a hearing, the defendant's motion to withdraw his plea of guilty.  A motion to withdraw a plea of guilty 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. Boria, 157 A.D.3d 811, 69 N.Y.S.3d 3).  “Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement” (People v. Rodriguez, 142 A.D.3d 1189, 1190, 38 N.Y.S.3d 224 [internal quotation marks omitted] ).  When a defendant moves to withdraw a plea of guilty, the nature and extent of the fact-finding inquiry rests largely in the discretion of the court, and a hearing will be granted only in rare instances (see People v. Tinsley, 35 N.Y.2d 926, 365 N.Y.S.2d 161, 324 N.E.2d 544; People v. Rodriguez, 154 A.D.3d 968, 969, 63 N.Y.S.3d 441).

Here, the record establishes that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Boria, 157 A.D.3d at 812, 69 N.Y.S.3d 3; People v. Smith, 148 A.D.3d 939, 49 N.Y.S.3d 501).  The defendant's contention that he was coerced into pleading guilty is premised on unsubstantiated and conclusory allegations and belied by his statements under oath at the plea proceeding.  Thus, the statements were insufficient to warrant vacatur of his plea or a hearing on the issue (see People v. Ward, 140 A.D.3d 903, 32 N.Y.S.3d 648).  Moreover, the mere fact that defense counsel may have advised the defendant as to the risks of trial, including the possibility of consecutive sentences upon conviction, is insufficient to establish coercion (see People v. Gomez, 137 A.D.3d 1161, 27 N.Y.S.3d 650; People v. Holcombe, 116 A.D.3d 1063, 983 N.Y.S.2d 875).

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).


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