Opinion
2011-04-5
The PEOPLE, etc., respondent, v. Reinaldo PEREZ, appellant.
Marianne Karas, Armonk, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Lois Cullen Valerio, and Richard Longworth Hecht of counsel), for respondent.
Marianne Karas, Armonk, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Lois Cullen Valerio, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Wetzel, J.), rendered April 30, 2010, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
The Supreme Court did not improvidently exercise its discretion in denying, without a hearing, the defendant's pro se application to withdraw his plea of guilty. A motion to withdraw a plea of guilty is addressed to the sound discretion of the court, whose determination generally will not be disturbed absent an improvident exercise of discretion (see People v. Harris, 74 A.D.3d 838, 839, 901 N.Y.S.2d 543;People v. Wiedmer, 71 A.D.3d 1067, 896 N.Y.S.2d 686;People v. Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231). Only rarely is a defendant entitled to a full evidentiary hearing on a motion to withdraw the plea (see People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;People v. Griffith, 78 A.D.3d 1194, 1195, 913 N.Y.S.2d 264). “Instead, it is sufficient if the court affords the defendant an opportunity to present his [or her] arguments with respect to withdrawal” (People v. Griffith, 78 A.D.3d at 1195, 913 N.Y.S.2d 264; see People v. Fiumefreddo, 82 N.Y.2d 536, 543–544, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Tinsley, 35 N.Y.2d at 927, 365 N.Y.S.2d 161, 324 N.E.2d 544). Here, the record supports the Supreme Court's determination that the defendant's plea was entered knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d at 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Harris, 74 A.D.3d at 839, 901 N.Y.S.2d 543). The defendant's unsubstantiated and conclusory assertions of innocence, coercion, and ineffective assistance of counsel were contradicted by the record and, therefore, were insufficient to warrant withdrawal or a hearing (see People v. Griffith, 78 A.D.3d at 1195, 913 N.Y.S.2d 264;People v. Wiedmer, 71 A.D.3d at 1067, 896 N.Y.S.2d 686;People v. Potter, 294 A.D.2d 603, 604, 742 N.Y.S.2d 584;People v. D'Orio, 210 A.D.2d 424, 425, 620 N.Y.S.2d 410;People v. Grady, 110 A.D.2d 780, 780–781, 488 N.Y.S.2d 58).
ORDERED that the judgment is affirmed.
“[T]he defendant's waiver of his right to appeal precludes review of his contention that he was denied the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea” ( People v. Gedin, 46 A.D.3d at 701, 847 N.Y.S.2d 231;see People v. Aguayo, 73 A.D.3d 938, 939, 899 N.Y.S.2d 878;People v. Taubenkraut, 48 A.D.3d 598, 849 N.Y.S.2d 896). To the extent the defendant contends that his counsel was ineffective such that the voluntariness of his plea was affected, the recordreveals that the defendant received an advantageous plea, and nothing in the record casts doubt on the effectiveness of counsel ( see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;People v. Aguayo, 73 A.D.3d at 939, 899 N.Y.S.2d 878;People v. Mercer, 69 A.D.3d 960, 892 N.Y.S.2d 784;People v. Gallo, 54 A.D.3d 964, 965, 863 N.Y.S.2d 828).