Opinion
7 KA 17–01653
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Wayne SHORTER, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of felony driving while intoxicated ( Vehicle and Traffic Law §§ 1192[2] ; 1193[1][c][ii] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ). We reject defendant's contention that County Court abused its discretion in denying his pro se motion to withdraw his guilty plea without conducting an evidentiary hearing or making a further inquiry into his allegations. " ‘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 ... [O]ften[,] a limited interrogation by the court will suffice’ " ( People v. Manor, 27 N.Y.3d 1012, 1013–1014, 35 N.Y.S.3d 272, 54 N.E.3d 1143 [2016] ; see People v. Walker, 114 A.D.3d 1257, 1258, 980 N.Y.S.2d 216 [4th Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014] ). " ‘The defendant should be afforded reasonable opportunity to present his contentions’ " ( Walker, 114 A.D.3d at 1258, 980 N.Y.S.2d 216 ). Where "a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry" ( People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ).
Here, the court allowed defendant to argue his motion to withdraw his plea, thus giving him a reasonable opportunity to advance his claims, and the court did not abuse its discretion in denying the motion without further inquiry or a hearing (see People v. Alfred, 142 A.D.3d 1373, 1373, 38 N.Y.S.3d 471 [4th Dept. 2016], lv denied 28 N.Y.3d 1142, 52 N.Y.S.3d 294, 74 N.E.3d 679 [2017] ; People v. Bucci, 137 A.D.3d 1744, 1744, 27 N.Y.S.3d 419 [4th Dept. 2016] ; People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ). Defendant argued that he felt forced to take the plea based on his attorney's comments regarding the upcoming suppression hearing, which suggested that his attorney would not adequately represent him. Contrary to defendant's contention, defense counsel's advice that defendant was not likely to win at the suppression hearing did not constitute coercion (see People v. Griffin, 120 A.D.3d 1569, 1570, 993 N.Y.S.2d 404 [4th Dept. 2014], lv denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] ). Additionally, defendant's contention that he was forced to take the plea by his attorney is belied by the record inasmuch as defendant stated during the plea colloquy that he was pleading guilty of his own free will and was satisfied with his attorney's services (see Bucci, 137 A.D.3d at 1744, 27 N.Y.S.3d 419 ; People v. Strasser, 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454 [4th Dept. 2011] ).
Contrary to defendant's further contention, his motion to withdraw the guilty plea did not include a request for new counsel (see People v. Ortiz, 173 A.D.3d 433, 433, 102 N.Y.S.3d 31 [1st Dept. 2019] ; People v. Singletary, 63 A.D.3d 1654, 1654, 880 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009] ; People v. Moore, 39 A.D.3d 1199, 1199–1200, 834 N.Y.S.2d 606 [4th Dept. 2007], lv denied 9 N.Y.3d 867, 840 N.Y.S.2d 897, 872 N.E.2d 1203 [2007] ). Moreover, even assuming, arguendo, that defendant implicitly made such a request in the motion, we conclude that he failed to make specific factual allegations of serious complaints that would trigger the court's obligation to conduct a further inquiry (see Ortiz, 173 A.D.3d at 433, 102 N.Y.S.3d 31 ; see generally People v. Sides, 75 N.Y.2d 822, 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ).
Finally, the sentence is not unduly harsh or severe.