Opinion
January 15, 1991
Appeal from the Supreme Court, Bronx County (Bonnie Wittner, J.).
Defendant's pro se motion to withdraw his guilty plea, pursuant to CPL 220.60 (3), and a subsequent motion, with the aid of counsel, to reopen the suppression hearing, on the ground of ineffective assistance of counsel at the Mapp hearing, were properly denied. Defendant was found in possession of narcotics while a passenger in a taxicab that had been stopped for a traffic infraction. After defendant's motion to suppress the physical evidence was denied, defendant pleaded guilty. Defendant subsequently moved, both pro se and through new counsel, to withdraw his plea and reopen the Wade hearing, based on, inter alia, statements obtained from the livery cab driver that he had committed no traffic infraction which would have justified the traffic stop.
The court committed no error in denying defendant's motion without a hearing. No assertion was made that defendant had advised counsel of the existence or whereabouts of the cab driver, allegedly a family friend. Under these circumstances, the fact that the cab driver might have been able to give favorable testimony, by itself, is insufficient to establish that these nonrecord facts were material, so as to require a hearing (People v Ferreras, 70 N.Y.2d 630). Defendant's remaining claim that the negotiated plea-bargained sentence imposed was excessive is meritless. (People v Guerrero, 155 A.D.2d 262, lv denied 75 N.Y.2d 868.)
Concur — Sullivan, J.P., Milonas, Rosenberger, Wallach and Smith, JJ.