Opinion
2019-03642 Ind. 18-00526
04-13-2022
The People of the State of New York, respondent, v. Peter Corines, appellant.
Arza Feldman, Uniondale, NY, for appellant, and appellant pro se. Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Steven A. Bender of counsel), for respondent.
Arza Feldman, Uniondale, NY, for appellant, and appellant pro se.
Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Steven A. Bender of counsel), for respondent.
MARK C. DILLON, J.P. FRANCESCA E. CONNOLLY VALERIE BRATHWAITE NELSON LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered March 28, 2019, convicting him of grand larceny in the second degree, attempted grand larceny in the second degree, and identity theft in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v Thomas, 34 N.Y.3d 545, 564-565; People v Sanders, 25 N.Y.3d 337, 341-342; People v Williams, ___ A.D.3d ___, 2022 NY Slip Op 01468 [2d Dept]). However, the defendant's contentions that his plea of guilty was not knowing, voluntary, or intelligent and that the Supreme Court was without authority to issue an order of protection on behalf of the victim's sister survive a valid waiver of the right to appeal (see People v Lopez, 199 A.D.3d 704; People v Glover, 186 A.D.3d 621).
Regarding the plea of guilty, contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying, without a hearing, his motion to withdraw the plea (see People v Lopez, 200 A.D.3d 717). "'Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement'" (People v Jackson, 170 A.D.3d 1040, 1040, quoting People v Rodriguez, 142 A.D.3d 1189, 1190). On a motion to withdraw a plea of guilty, the nature and extent of the fact-finding inquiry rests largely in the discretion of the court (see People v Jackson, 170 A.D.3d at 1040), and only in rare instances will a defendant be entitled to an evidentiary hearing (see People v Richards, 186 A.D.3d 1411; People v Lazard, 185 A.D.3d 964; People v Bhuiyan, 181 A.D.3d 699). Here, the record as a whole and the circumstances surrounding the entry of the plea reveal that the defendant's plea was knowingly, voluntarily, and intelligently made (see People v McMullin, 186 A.D.3d 857, 858).
Furthermore, the defendant was not entitled to withdraw his plea of guilty based on his subsequent unsupported claim of innocence, where the plea was voluntarily made with the advice of counsel following an appraisal of all relevant factors (see People v Fisher, 28 N.Y.3d 717, 726; People v Haffiz, 19 N.Y.3d 883; People v Dixon, 29 N.Y.2d 55). The plea colloquy reveals that the defendant knowingly and voluntarily admitted the factual allegations of the crimes and made no protest of innocence (see People v Haffiz, 19 N.Y.3d at 884-885). Although the defendant claims that his plea was not knowing, voluntary, and intelligent because the term "larceny" was not defined at the plea proceeding, neither the Supreme Court nor the prosecutor was required to do so. Courts presiding over pleading defendants are not required to engage in a "formalistic approach to guilty pleas"; in fact, they are to avoid a "uniform mandatory catechism" (People v Conceicao, 26 N.Y.3d 375, 382 [internal quotation marks omitted]). Here, the record of the plea proceeding demonstrates that the defendant understood the charges and made an intelligent decision to enter a plea of guilty (see id. at 383; People v Goldstein, 12 N.Y.3d 295, 301; People v Luck, 175 A.D.3d 1430; People v Peralta, 171 A.D.3d 948, 948-949).
The defendant's contention that the Supreme Court coerced him into pleading guilty is without merit. The court's comments to the defendant regarding the sentence he might receive if he were found guilty at trial were informative and not coercive (see People v Bridgers, 159 A.D.3d 715; People v Martinez, 155 A.D.3d 1063). The defendant's contention that his plea of guilty was not voluntary because he was experiencing pain due to a medical condition at the time of the plea proceeding is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction (see generally People v Navarro-Martinez, 154 A.D.3d 781). Finally, as regards the plea, by entering his plea of guilty, the defendant forfeited the contention raised in his pro se supplemental brief that the indictment was defective on the ground that allegedly perjured testimony impaired the integrity of the grand jury proceeding (see People v Monroe, 174 A.D.3d 649).
The defendant's contention regarding a temporary order of protection is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction (see People v Glover, 186 A.D.3d at 621; People v Kennedy, 151 A.D.3d 1079, 1080).
"By waiving his right to appeal, the defendant gave up his right to challenge the adequacy of his attorney's representation, except insofar as counsel's alleged ineffectiveness affected the voluntariness of the defendant's plea of guilty" (People v Williams, 165 A.D.3d 1183, 1183-1184). To the extent the defendant claims that he was deprived of the effective assistance of counsel with respect to the plea bargaining process, this contention is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a mixed claim of ineffective assistance (see People v Ross, 113 A.D.3d 877, 878; People v Ortega, 113 A.D.3d 797, 798). Since the defendant's claim of ineffective assistance, to the extent that it has not been forfeited by his plea of guilty, cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Ross, 113 A.D.3d at 878; People v Ortega, 113 A.D.3d at 798).
The defendant's valid waiver of his right to appeal precludes appellate review of the remaining contentions raised in his pro se supplemental brief.
DILLON, J.P., CONNOLLY, BRATHWAITE NELSON and GENOVESI, JJ., concur.