Summary
holding that the defendant's "bare allegations of innocence, coercion and ineffective representation . . . would not require granting his motion to withdraw the guilty plea"
Summary of this case from People v. AndradesOpinion
November 8, 1990
Appeal from the Supreme Court, New York County (Richard Failla, J.).
Defendant was arrested and charged with burglary and robbery arising out of a dispute at a Manhattan apartment. After his arrest, defendant complained of illness, and was transported to a hospital, where he escaped. Defendant was apprehended a few blocks away, but resisted rearrest forcefully. At the plea proceeding, pursuant to a negotiated plea, defendant allocuted to waiver of Boykin rights, and made a factual allocution with respect to the charges against him. Defendant did not at that time raise any complaint concerning the quality of his representation, or the accuracy and truthfulness of his factual allocution. At the sentencing proceeding, defendant requested an adjournment which was denied, and then claimed that counsel had not been cooperative, and had insulted and intimidated him at the plea proceeding. Defendant made a bare allegation of his innocence of escape in the second degree. The court deemed defendant's pro se application to constitute an application to withdraw his plea, and summarily denied it.
We cannot say that the court abused its discretion. Defendant offered only bare allegations of innocence, coercion and ineffective representation which would not require granting his motion to withdraw the guilty plea (see, People v. Billingsley, 54 N.Y.2d 960). Under the totality of these circumstances, this is not the "rare instance" in which a defendant will be "entitled to an evidentiary hearing" and the limited interrogation by the court was sufficient (People v. Tinsley, 35 N.Y.2d 926, 927). The court noted on the record that it had been familiar with the proceedings from the beginning, had observed counsel explaining the proceedings to defendant in minute detail, repeatedly, and that there existed no basis in the record to support defendant's allegations. Defendant cannot now complain that counsel failed to achieve accommodations from another court with respect to running that time concurrent to the present sentence.
Finally, for these same reasons, defendant's appeal from denial of his motion to vacate the judgment pursuant to CPL 440.10, on the alleged basis of ineffective assistance of counsel, is meritless. We note the presumptive regularity of a judgment and defendant's burden of coming forward with allegations which create an issue of fact (People v. Session, 34 N.Y.2d 254). It is well settled that the nature and extent of any fact-finding procedures relative to disposition of such motions rest largely in the discretion of the motion court (People v. Tinsley, supra), which will be disturbed only upon a finding that the court abused its discretion (People v. Friedgood, 58 N.Y.2d 467). Defendant has not met his burden.
Concur — Kupferman, J.P., Sullivan, Carro, Milonas and Smith, JJ.