Opinion
12-28-2016
The PEOPLE, etc., respondent, v. Eladio ESPEJO, appellant.
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel; Michael D. Fuzaylov on the brief), for respondent.
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel; Michael D. Fuzaylov on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered September 23, 2014, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). 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 at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Guillebeaux, 136 A.D.3d 1055, 25 N.Y.S.3d 613 ).
However, the defendant's claim regarding the voluntariness of his plea survives his waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Haywood, 122 A.D.3d 769, 769, 996 N.Y.S.2d 137 ). 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 discretion (see CPL 220.60[3] ; People v. Douglas, 83 A.D.3d 1092, 1092, 921 N.Y.S.2d 324 ). Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying, without a hearing, that branch of his motion which was to withdraw his plea of guilty. The record establishes that the defendant knowingly, voluntarily, and intelligently entered a plea of guilty (see People v. Sougou, 26 N.Y.3d 1052, 1054–1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ; People v. Rodriguez, 142 A.D.3d 1189, 1189–1190, 38 N.Y.S.3d 224 ; People v. Jemmott, 125 A.D.3d 1005, 1006, 5 N.Y.S.3d 447 ).
BALKIN, J.P., DICKERSON, LaSALLE and CONNOLLY, JJ., concur.