Opinion
2013-03-27
The PEOPLE, etc., respondent, v. Michael MORRISON, appellant.
Barry Krinsky, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Daniel Berman on the brief), for respondent.
Barry Krinsky, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Daniel Berman on the brief), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered April 28, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
When a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary, and intelligent ( seeN.Y. Const., art. I, § 6; People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152,cert. denied553 U.S. 1048, 128 S.Ct. 2430, 171 L.Ed.2d 257;People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265). Here, the plea allocution demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170). The defendant's contention that the plea allocution was factually insufficient is unpreserved for appellate review ( seeCPL 470.05 [2] ). Moreover, the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 [internal quotation marks omitted]; see People v. Lopez, 71 N.Y.2d at 666 and n. 2, 529 N.Y.S.2d 465, 525 N.E.2d 5).
Further, a motion to withdraw a plea of guilty is addressed to the sound discretion of the Supreme Court, and its determination generally will not be disturbed absent an improvident exercise of discretion ( see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Pelaez, 100 A.D.3d 803, 804, 954 N.Y.S.2d 554;People v. Caruso, 88 A.D.3d 809, 930 N.Y.S.2d 668;People v. Amanze, 87 A.D.3d 1159, 929 N.Y.S.2d 876). The Supreme Court did not improvidently exercise its discretion in denying, after a hearing, the defendant's motion to withdraw his plea of guilty ( seeCPL 220.60).
The defendant's remaining contentions are without merit.