Opinion
No. 2013–2279 D CR.
04-26-2016
The PEOPLE of the State of New York, Respondent, v. Darren ATKINS, Appellant.
Appeal from a judgment of the City Court of Beacon, Dutchess County (Timothy G. Pagones, J.), rendered October 10, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree.
ORDERED that the judgment of conviction is affirmed.
In four accusatory instruments, defendant was charged with criminal contempt in the first degree (Penal Law § 215.51[b] ), a class E felony, assault in the third degree (Penal Law § 120.00[1] ), a class A misdemeanor, criminal obstruction of breathing or blood circulation (Penal Law § 121.11[a] ), a class A misdemeanor, and resisting arrest (Penal Law § 205.30 ), a class A misdemeanor, respectively, arising out of an incident on July 1, 2013. In a supporting deposition, defendant's girlfriend alleged that, when she had arrived at defendant's house at 11:15 p.m. on July 1, 2013, defendant had yelled at her, because she had been out with her son's father all day. Defendant then grabbed her around her throat with two hands and applied pressure, which caused her physical pain. She threw punches at him to try to get him off her, but defendant struck her on the left side of her face with a closed fist and then threw her to the ground. She struck her knee hard against the ground. She had an order of protection against defendant signed by Judge Pagones, which had been issued on March 28, 2013 and was in effect on the day of the incident.
Prior to the plea proceeding on July 18, 2013, the felony charge of criminal contempt in the first degree was reduced to criminal contempt in the second degree (Penal Law § 215.50[3] ), a class A misdemeanor. Defendant pleaded guilty to the reduced charge apparently in satisfaction of all four charges. During the court's allocution, defendant indicated that he understood the right to a trial at which the People had to prove his guilt beyond a reasonable doubt, and that he gave up that right; that no one had made any threats or promises to him; and that he had had enough time to speak to his attorney, and was satisfied with his representation. Defendant admitted that, on July 1, 2013, he had violated an order of protection that had been duly served upon him.
On September 12, 2013, the matter came on for sentencing, but, as defendant wanted to discuss with his attorney the possibility of withdrawing his plea, the matter was adjourned to October 10, 2013. Sometime after defendant entered into the plea, defendant's girlfriend allegedly recanted, claiming, in a handwritten, unsworn letter addressed to the City Court, that she had made false statements; that defendant had not put his hands on her at anytime; that she had been drinking and had not taken her medication; that she had come to defendant's house to talk to him; that she loved defendant; that the police had told her not to go to defendant's house, but she had gone anyway; that she was sorry that she had lied to the court and had gotten defendant in trouble; and that she was willing, under oath, to correct the things that she had said.
At sentencing, defendant's counsel told the City Court that defendant had pleaded guilty “to get out of jail.” Counsel had received a copy of defendant's girlfriend's letter, and defendant's girlfriend was present in court. Counsel told the court that she had “admitted to lying about this case, and that she's in love with Mr. Atkins.” The City Court suggested that the People “have her arrested for filing a false instrument, and that she can go to jail,” because “this is not a game.” The court declined to impose a lesser sentence. Defense counsel told the court that defendant still wanted to withdraw his guilty plea. The court responded, “I don't see any reason to let him withdraw his plea. He was sworn. He gave a perfectly good allocution. So, then he's committing perjury.” Before the court sentenced defendant, he told the City Court, “I don't think it's fair. I really don't.” The court sentenced defendant, as promised, to three years' probation.
On appeal, defendant claims that the court failed to sufficiently inform him of the rights he was relinquishing by pleading guilty and that it erred in denying his motion to withdraw his plea of guilty after his girlfriend had recanted her allegations.
Since defendant orally moved to withdraw his guilty plea, based upon the recantation claim, prior to sentencing, he could have, in the same motion, also raised the issue of whether he had been adequately informed of his constitutional rights. Thus, under the facts and circumstances of this case, defendant's claim is unpreserved for appellate review, as he did not face a practical inability to move to withdraw his plea on the ground that he had not been sufficiently informed of his constitutional rights (see People v. Conceicao, 26 NY3d 375, 382 [2015] ; People v. Tyrell, 22 NY3d 359, 364 [2013] ; People v. Powell, 134 AD3d 647 [2015] ; People v. Jones, 50 Misc.3d 136[A], 2016 N.Y. Slip Op 50078[U] [App Term, 1st Dept 2016] ). In any event, defendant was adequately informed of his constitutional rights. Contrary to defendant's claim that the City Court was required to inform him of an expansive list of rights he was giving up by pleading guilty, a court “need not engage in any particular litany” (People v. Conceicao, 26 NY3d at 382 ). The Court of Appeals has “repeatedly rejected a formalistic approach to guilty pleas and [has] steered clear of a uniform mandatory catechism of pleading defendants” (People v. Tyrell, 22 NY3d at 365 [internal quotation marks omitted] ). In fact, there is no rule “that a discussion of [the] rights is invariably required where the record shows, or an allegation and evidence' show, that an accused intelligently and understandingly rejected his constitutional rights” (People v. Conceicao, 26 NY3d at 383, quoting People v. Tyrell, 22 NY3d at 365–366 ). Here, the City Court specifically informed defendant that he had a right to a trial where the People had to prove his guilt beyond a reasonable doubt, and defendant indicated that he had had enough time to speak to his attorney. Under these circumstances, defendant's plea was knowingly, intelligently, and validly entered (see People v. Conceicao, 26 NY3d at 383–384 ).
The City Court also correctly denied defendant's motion to withdraw his guilty plea. “The decision 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.. Duncan, 78 AD3d 1193 [2010] ; see CPL 220.60[3] ; People v. Seeber, 4 NY3d 780 [2005] ; People v. Bush, 132 AD3d 691 [2015] ; People v. Crawford, 106 AD3d 832, 833 [2013] ). A motion to withdraw a guilty plea is properly denied where the motion is based solely on recantation evidence, which “is inherently unreliable and insufficient, alone, to justify setting aside a conviction” (People v. Mortensen, 60 AD3d 971, 972 [2009] ; see People v. Branton, 35 AD3d 1035, 1036 [2006] ; People v. Caruso, 39 Misc.3d 137[A], 2012 N.Y. Slip Op 52461[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v. Hick, 30 Misc.3d 132[A], 2010 N.Y. Slip Op 52353[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010] ).
Here, defendant admitted, on the record and under oath, that at 11:31 p.m. on July 1, 2013, in the City of Beacon, Dutchess County, he had violated an order of protection. Furthermore, the supporting deposition of defendant's girlfriend was extremely detailed. By contrast, her unsworn letter does not address many of the details of her supporting deposition. Under the circumstances, the City Court did not improvidently exercise its discretion in denying defendant's motion to withdraw his guilty plea.
Accordingly, the judgment of conviction is affirmed.
IANNACCI, J.P., and TOLBERT, J., concur.