Opinion
2017–11051 Ind.No. 16–00331
03-06-2019
The PEOPLE, etc., Respondent, v. Eduardo NAJERA, Appellant.
Mark Diamond, New York, NY, for appellant. Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Amanda M. Doty of counsel), for respondent.
Mark Diamond, New York, NY, for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Amanda M. Doty of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDERORDERED that the judgment is affirmed. The defendant was charged by indictment with predatory sexual assault against a child, rape in the first degree, attempted rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child. The defendant entered a plea of guilty to rape in the first degree. As part of the plea agreement, the defendant orally waived his right to appeal and executed a written waiver of the right to appeal. Subsequently, the defendant's motion for the assignment of new counsel was granted, and thereafter, the defendant moved to withdraw his plea of guilty. After the defendant's motion was denied, the County Court sentenced the defendant in accordance with the plea agreement.
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 (see CPL 220.60[3] ; People v. Seeber , 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Caruso , 88 A.D.3d 809, 930 N.Y.S.2d 668 ; People v. Duncan , 78 A.D.3d 1193, 912 N.Y.S.2d 283 ). "When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare instances" ( People v. Brown , 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782, quoting People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; see People v. Howard , 109 A.D.3d 487, 970 N.Y.S.2d 86 ; People v. Dazzo , 92 A.D.3d 796, 938 N.Y.S.2d 446 ).
Here, the record supports the County Court's determination denying, without a hearing, the defendant's motion to withdraw his plea of guilty, as his plea was entered knowingly, voluntarily, and intelligently (see People v. Johnson , 97 A.D.3d 695, 948 N.Y.S.2d 120 ; People v. Dazzo , 92 A.D.3d at 796–797, 938 N.Y.S.2d 446 ; People v. Caruso , 88 A.D.3d at 810, 930 N.Y.S.2d 668 ). The defendant's postplea statements of innocence were unsubstantiated, conclusory, and belied by the plea proceeding, during which he acknowledged under oath that he was satisfied with his counsel's representation, that he had not been coerced into pleading guilty, and that he was entering the plea freely and voluntarily (see People v. Howard , 109 A.D.3d at 488, 970 N.Y.S.2d 86 ; People v. Perez , 51 A.D.3d 1043, 861 N.Y.S.2d 63 ; People v. Gedin , 46 A.D.3d 701, 847 N.Y.S.2d 231 ), and by the statements he made to the police (see People v. Innocent , 132 A.D.3d 696, 697, 17 N.Y.S.3d 505 ; People v. Perez , 83 A.D.3d 738, 739, 919 N.Y.S.2d 887 ; People v. Oquendo , 17 A.D.3d 701, 792 N.Y.S.2d 918 ; cf. People v. Haddock , 79 A.D.3d 1148, 1149, 917 N.Y.S.2d 634 ).
The defendant's contention that his plea of guilty was involuntary because the County Court did not advise him of each of the federal constitutional rights he was forfeiting by pleading guilty, and because the prosecutor directed questions as part of the factual allocution to which he provided monosyllabic, one-word responses, is unpreserved for appellate review since the defendant did not raise this issue in his presentence motion to withdraw his plea of guilty or otherwise raise this issue before the County Court (see People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Legnini , 61 A.D.3d 895, 876 N.Y.S.2d 873 ; People v. Velazquez , 21 A.D.3d 388, 798 N.Y.S.2d 919 ; People v. Bowers , 128 A.D.2d 541, 542, 512 N.Y.S.2d 473 ). In any event, the defendant's contentions are without merit (see People v. Tyrell , 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Harris , 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Singh , 158 A.D.3d 824, 825, 68 N.Y.S.3d 888 ; People v. Dancy , 156 A.D.3d 717, 66 N.Y.S.3d 530 ; People v. Morocho , 129 A.D.3d 1107, 1108, 11 N.Y.S.3d 684 ).
The defendant's valid waiver of his right to appeal (see People v. Sanders , 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Ramos , 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Muniz , 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ; cf. People v. Pelaez , 100 A.D.3d 803, 954 N.Y.S.2d 554 ) precludes appellate review of his claim that he was deprived of his right to the effective assistance of counsel, except to the extent that the alleged ineffective assistance may have affected the voluntariness of his plea (see People v. Fisher , 121 A.D.3d 1013, 1014, 995 N.Y.S.2d 168 ; People v. Montalvo , 105 A.D.3d 774, 775, 961 N.Y.S.2d 324 ). Insofar as the defendant contends that his counsel's conduct affected the voluntariness of the plea, the contention is based on matter dehors the record and, thus, cannot be reviewed on direct appeal (see People v. Granger , 122 A.D.3d 940, 942, 997 N.Y.S.2d 466 ; People v. Folger , 110 A.D.3d 736, 971 N.Y.S.2d 890 ; People v. Rohlehr , 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ). The appropriate vehicle to allege ineffective assistance of counsel based on matter dehors the record is pursuant to CPL 440.10 (see People v. Folger , 110 A.D.3d 736, 971 N.Y.S.2d 890 ; People v. Rohlehr , 87 A.D.3d at 604, 927 N.Y.S.2d 919 ).
RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.