Opinion
2020–07416 Ind. No. 53/19
11-09-2022
The PEOPLE, etc., respondent, v. Alfred BARNES, appellant.
Andrew E. MacAskill, Garden City, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Madeline Collins of counsel), for respondent.
Andrew E. MacAskill, Garden City, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Madeline Collins of counsel), for respondent.
BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert G. Bogle, J.), rendered August 26, 2020, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
On December 12, 2019, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the second degree. As part of the plea agreement, the defendant waived his right to appeal. On August 26, 2020, prior to sentencing, the defendant moved to withdraw his plea of guilty. The Supreme Court denied the motion without a hearing and imposed sentence.
The defendant's waiver of his right to appeal was knowing, intelligent, and voluntary (see People v. Thomas, 34 N.Y.3d 545, 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Green, 173 A.D.3d 1202, 1202, 101 N.Y.S.3d 644 ; People v. Koch, 168 A.D.3d 977, 978, 90 N.Y.S.3d 542 ; People v. Batista, 167 A.D.3d 69, 73–74, 86 N.Y.S.3d 492 ). The Supreme Court accurately described the distinct rights forfeited by the appeal waiver (see People v. Koch, 168 A.D.3d at 978, 90 N.Y.S.3d 542 ; People v. Rodriguez, 78 A.D.3d 1204, 1205, 911 N.Y.S.2d 675 ; cf. People v. Walder, 186 A.D.3d 1272, 1272, 127 N.Y.S.3d 894 ). Furthermore, the nature and terms of the plea agreement and the defendant's age, experience, and background do not cast any doubt upon the validity of the appeal waiver (see People v. Thomas, 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Sanders, 112 A.D.3d 748, 750, 976 N.Y.S.2d 205, affd 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; cf. People v. Fahey, 200 A.D.3d 978, 979, 158 N.Y.S.3d 247 ).
"The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the hearing court's suppression determination" ( People v. Matos, 176 A.D.3d 976, 976, 108 N.Y.S.3d 354 ; see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Stevenson, 196 A.D.3d 705, 706, 148 N.Y.S.3d 695 ).
"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" ( People v. Matos, 176 A.D.3d at 976, 108 N.Y.S.3d 354, citing CPL 220.60[3] ; see People v. Hollmond, 191 A.D.3d 120, 136, 135 N.Y.S.3d 449 ). "Such a motion ‘must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea’ " ( People v. Matos, 176 A.D.3d at 976, 108 N.Y.S.3d 354, quoting People v. De Jesus, 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ; see People v. Prunesti, 193 A.D.3d 984, 985, 142 N.Y.S.3d 835 ). "Only in rare instances will a defendant be entitled to an evidentiary hearing upon a motion to withdraw a plea of guilty" ( People v. Matos, 176 A.D.3d at 976, 108 N.Y.S.3d 354 [internal quotation marks omitted]). Here, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see id. ; People v. Boria, 157 A.D.3d 811, 812, 69 N.Y.S.3d 3 ), and nothing in the record supports the conclusion that, at the time of the plea proceeding, the defendant lacked the capacity to understand the nature of the proceedings or the consequences of his plea (see People v. Jones, 207 A.D.3d 563, 564, 169 N.Y.S.3d 836 ; People v. Manzanales, 170 A.D.3d 752, 753, 93 N.Y.S.3d 587 ; People v. DeBenedetto, 120 A.D.3d 1428, 1429, 992 N.Y.S.2d 370 ). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to withdraw his plea without a hearing.
The defendant's challenge to the procedure used to adjudicate him a second violent felony offender is unpreserved for appellate review (see People v. Lollie, 204 A.D.3d 1430, 1431, 166 N.Y.S.3d 805 ; People v. Stevens, 171 A.D.3d 1106, 1108, 98 N.Y.S.3d 239, citing CPL 470.05[2] ), and we decline to reach it in the exercise of our interest of justice jurisdiction.
BARROS, J.P., BRATHWAITE NELSON, CHAMBERS and WAN, JJ., concur.