Opinion
2017–09162 Ind. No. 15–01062
01-22-2020
The PEOPLE, etc., Respondent, v. John BRICKHOUSE, Appellant.
Pat Bonanno, White Plains, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Steven A. Bender of counsel), for respondent.
Pat Bonanno, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Steven A. Bender of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOHN M. LEVENTHAL, JOSEPH J. MALTESE, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered July 26, 2017, convicting him of robbery in the third degree and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant pleaded guilty to robbery in the third degree and criminal possession of a weapon in the third degree. Before the Supreme Court imposed sentence, the defendant moved to withdraw his plea of guilty. The court denied the motion without conducting a hearing, and imposed the promised sentence of two terms of 3½ to 7 years of imprisonment, to run consecutively.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his motion to withdraw the plea of guilty without conducting a hearing. When a defendant moves to withdraw a plea of guilty, the nature and extent of the fact-finding procedures "rest[s] largely in the discretion of the Judge to whom the motion is made," and a defendant will be entitled to an evidentiary hearing only in rare instances ( People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; see People v. Matos , 176 A.D.3d 976, 976, 108 N.Y.S.3d 354 ). "[O]ften ‘a limited interrogation by the court will suffice’ " ( People v. Caputo , 163 A.D.3d 983, 984, 82 N.Y.S.3d 457, quoting People v. Tinsley , 35 N.Y.2d at 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ). However, "[t]he defendant should be afforded reasonable opportunity to present his contentions and the court should be enabled to make an informed determination" ( People v. Tinsley , 35 N.Y.2d at 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ).
"The decision as to 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. Jacob , 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627 ; see CPL 220.60[3] ; People v. Seeber , 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797 ). "Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement" ( People v. Smith , 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ; see People v. Haffiz , 77 A.D.3d 767, 768, 909 N.Y.S.2d 490, affd 19 N.Y.3d 883, 951 N.Y.S.2d 690, 976 N.E.2d 216 ). Here, the record demonstrates that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Matos , 176 A.D.3d at 976, 108 N.Y.S.3d 354 ; People v. Jacob , 94 A.D.3d 1142, 942 N.Y.S.2d 627 ). Moreover, he was afforded an adequate opportunity to present his contentions (see People v. Tinsley , 35 N.Y.2d at 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ) and, since there was no legitimate question as to the voluntariness of the plea, the Supreme Court providently exercised its discretion in denying the defendant's motion without conducting an evidentiary hearing (see People v. Matos , 176 A.D.3d at 976, 108 N.Y.S.3d 354 ; People v. Jacob , 94 A.D.3d 1142, 942 N.Y.S.2d 627 ).
Contrary to the defendant's contention, the imposition of consecutive sentences was legal. "A trial court may impose consecutive sentences when ‘the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct’ " ( People v. Dean, 8 N.Y.3d 929, 930–931, 834 N.Y.S.2d 704, 866 N.E.2d 1032, quoting People v. Ramirez , 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 ; see Penal Law § 70.25 ). "In ascertaining the existence of such facts, ‘where defendant has pleaded guilty to one or more counts alleged in the indictment, [the People] may rely on the allegations of those counts as well as the facts adduced at the allocution’ " ( People v. Dean , 8 N.Y.3d at 931, 834 N.Y.S.2d 704, 866 N.E.2d 1032, quoting People v. Laureano , 87 N.Y.2d 640, 644, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ).
Here, the allegations of the counts of the indictment to which the defendant pleaded guilty and the facts adduced at the allocution establish that the defendant had completed the crime of robbery in the third degree against one victim before he committed the crime of criminal possession of a weapon in connection with a different victim. Thus, the acts underlying the crimes were separate and distinct, and as such, the imposition of consecutive sentences was legal (see People v. Frazier , 16 N.Y.3d 36, 41, 916 N.Y.S.2d 574, 941 N.E.2d 1151 ).
SCHEINKMAN, P.J., MASTRO, LEVENTHAL and MALTESE, JJ., concur.