People v. Lopez

• Decision Date: 01 December 2021
• Docket Number: Ind. No. 1233/18,2019–10420
• Parties: The PEOPLE, etc., respondent, v. Jose LOPEZ, appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 717

154 N.Y.S.3d 874 (Mem)

The PEOPLE, etc., respondent,

v.Jose LOPEZ, appellant.

2019–10420

Ind. No. 1233/18

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

Submitted—October 27, 2021

December 1, 2021

Laurette D. Mulry, Riverhead, NY (Felice Milani of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello, Marion Tang, and Glenn Green of counsel), for respondent.

REINALDO E. RIVERA, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Richard Ambro, J.), rendered August 13, 2019, convicting him of criminal possession of a controlled substance 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 court and generally will not be disturbed absent an improvident exercise of [that] discretion" ( People v. Bennett, 115 A.D.3d 973, 973–974, 982 N.Y.S.2d 554 [internal quotation marks omitted]; see CPL 220.60[3] ; People v. Balbuenatorres, 179 A.D.3d 828, 829, 113 N.Y.S.3d 890 ). "Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement" ( People v. Jackson, 170 A.D.3d 1040, 1040, 96 N.Y.S.3d 330 [internal quotation marks omitted]).

Here, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. Viewing the record as a whole, the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Bhuiyan, 181 A.D.3d 699, 700, 120 N.Y.S.3d 400 ; People v. Jackson, 170 A.D.3d at 1040–1041, 96 N.Y.S.3d 330 ).

The defendant's contention that his attorney rendered 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 ( 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 ). 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....