People v. Simon

Appellate Division of the Supreme Court of the State of New York

Sep 20, 1993

Versions:196 A.D.2d 851

602 N.Y.S.2d 29

Appeal by the defendant from two judgments of the Supreme Court, Queens County (Beerman, J.), both rendered December 10, 1991, convicting him of attempted burglary in the second degree (two counts, one as to each indictment), upon his pleas of guilty, and imposing sentences.

Ordered that the judgments are affirmed.

Contrary to the defendant’s contentions, the Supreme Court *852did not improvidently exercise its discretion in denying, without an evidentiary hearing, his motion to withdraw his pleas (see, People v Frederick, 45 NY2d 520; People v Tinsley, 35 NY2d 926; People v Taveras, 169 AD2d 743).

We further conclude that since the defendant’s claim of ineffective assistance of counsel appears to rest on matters dehors the record, the proper way to have raised the claim was by a motion pursuant to CPL 440.10 and not by direct appeal.

The defendant’s remaining contentions are either unpreserved for appellate review (CPL 470.05 [2]) or without merit. Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.