People v. Dib

• Decision Date: 02 December 2015
• Citation: 19 N.Y.S.3d 774 (Mem),2015 N.Y. Slip Op. 08853,134 A.D.3d 732
• Parties: The PEOPLE, etc., respondent, v. Riad A. DIB, appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 732

19 N.Y.S.3d 774 (Mem)

2015 N.Y. Slip Op. 08853

The PEOPLE, etc., respondent,

v.Riad A. DIB, appellant.

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

Dec. 2, 2015.

Salvatore C. Adamo, New York, N.Y., for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.

Opinion

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered April 29, 2014, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

“The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the County Court, and generally will not be disturbed absent an improvident exercise of discretion” (People v. Bush,132 A.D.3d 691, 17 N.Y.S.3d 497; see People v. Alexander,97 N.Y.2d 482, 483–484, 743 N.Y.S.2d 45, 769 N.E.2d 802).

Here, the County Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty. During the plea proceeding, the defendant was advised, through an interpreter, of the constitutional rights he would forfeit by pleading guilty and the direct consequences of his plea (see People v. Solis,111 A.D.3d 654, 974 N.Y.S.2d 132; People v. Khan,201 A.D.2d 586, 607 N.Y.S.2d 737; People v. Santana,151 A.D.2d 518, 542 N.Y.S.2d 307), and the defendant acknowledged under oath that he understood that by pleading guilty, he was waiving certain constitutional rights, that he was satisfied with his counsel's representation, that he had not been pressured into pleading guilty, and that he was entering the plea of his own free will (see People v. Innocent,132 A.D.3d 696, 17 N.Y.S.3d 505; People v. West,123 A.D.3d 850, 996 N.Y.S.2d 534; People v. Howard,109 A.D.3d 487, 488, 970 N.Y.S.2d 86; People v. Perez,51 A.D.3d 1043, 861 N.Y.S.2d 63). Since the defendant's plea of guilty was knowing, voluntary, and intelligent, and his allegations of coercion were unsubstantiated and conclusory, the County Court properly denied the defendant's motion to withdraw his plea of guilty (see People v. Bush,132 A.D.3d 691, 17 N.Y.S.3d 497; People v. Douglas,83 A.D.3d 1092, 1093, 921 N.Y.S.2d 324).

Furthermore, contrary to the defendant's contention, his waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Sanders,25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344; People v. Deprosperis,132 A.D.3d 692, 17 N.Y.S.3d 315; People v. Vasquez,131 A.D.3d 1076, 16 N.Y.S.3d 464; People v. Dupree,130 A.D.3d 752, 11 N.Y.S.3d 865).

The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez,6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Vasquez,131 A.D.3d 1076, 16 N.Y.S.3d 464; People v. Ball,129 A.D.3d 739, 740, 8 N.Y.S.3d 919).

The defendant's claim that he was deprived of his constitutional right to 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). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for...