Opinion
No. 2023-455 W CR
10-17-2024
The People of the State of New York, Respondent, v. Arthur Smith, Appellant.
Richard L. Herzfeld, for appellant. Westchester County District Attorney (Shea Scanlon Lomma and Raffaelina Gianfrancesco of counsel), for respondent.
Unpublished Opinion
Richard L. Herzfeld, for appellant.
Westchester County District Attorney (Shea Scanlon Lomma and Raffaelina Gianfrancesco of counsel), for respondent.
PRESENT:: JERRY GARGUILO, P.J., GRETCHEN WALSH, ELENA GOLDBERG-VELAZQUEZ, JJ
Appeal from two judgments of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), rendered April 26, 2023. Each judgment convicted defendant, upon a plea of guilty, of criminal contempt in the second degree, and imposed sentence. The appeal from the judgments of conviction brings up for review so much of an order of the same court dated April 6, 2023 as denied defendant's motion to withdraw his guilty pleas.
ORDERED that the judgments of conviction are affirmed.
In satisfaction of several accusatory instruments, defendant pleaded guilty to two charges of criminal contempt in the second degree (Penal Law § 215.50 [3]) for violating two orders of protection, each in favor of a different victim. The first charge stemmed from text messages defendant sent to the mother of his child that stated, in substance, "Why didn't you tell me you were on vacation. Too many foolish games." The second charge stemmed from defendant waiting in his car outside of the other victim's apartment building. Prior to sentencing, defendant received assignment of new counsel and filed a motion to withdraw both guilty pleas. As relevant to this appeal, defendant asserted that his plea regarding the text messages charge must be vacated because he failed to allocute to his intent to violate that order of protection or to the fact that he was not communicating with the victim to establish visitation with his child, which was a permitted communication under the order of protection. In support of his motion, defendant submitted an affidavit that generally asserted that he was communicating with the victim about visitation, but did not otherwise mention, address, or provide context for the text messages. The motion court denied defendant's motion and imposed a two-year term of probation on each conviction, to run concurrently. On appeal, defendant contends that the court improvidently denied, without a hearing, the branch of his motion seeking to withdraw his plea of guilty regarding the text messages charge and that his second plea should be vacated along with the first, citing People v Pichardo (1 N.Y.3d 126 [2003]).
On appeal, defendant abandons the argument raised in his motion that the plea regarding him waiting in a car required vacatur because the factual allocution misidentified the date and issuing judge of the underlying order of protection.
Contrary to 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 [2019]; People v Sanders, 25 N.Y.3d 337, 339-342 [2015]; People v Bradshaw, 18 N.Y.3d 257, 264-267 [2011]; People v Lopez, 6 N.Y.3d 248, 254-255, 257 [2006]; People v Arscott, 63 Misc.3d 130 [A], 2019 NY Slip Op 50410[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; cf. People v Floyd, 218 A.D.3d 606, 606 [2023]). Defendant's valid waiver of his right to appeal precludes appellate review of his contentions except to the extent that his claims implicate the voluntariness of the relevant plea (see People v Zapata, 158 A.D.3d 778, 778 [2018], citing People v McErlean, 149 A.D.3d 872, 873 [2017]; see also People v Williams, 203 A.D.3d 850, 850 [2022]).
"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 that discretion" (Williams, 203 A.D.3d at 850 [alteration and internal quotation marks omitted], see CPL 340.20 [1], 220.60 [3]; People v Seeber, 4 N.Y.3d 780, 780 [2005]; People v Alexander, 97 N.Y.2d 482, 485 [2002]). Such a motion "must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (Williams, 203 A.D.3d at 850 [internal quotation marks omitted]). The motion court has "broad discretion in its fact-finding inquiry on the motion" (People v Mitchell, 21 N.Y.3d 964, 966 [2013]), so long as it gives a "defendant a reasonable opportunity to advance his claims from which an informed and prudent determination can be rendered" (People v Frederick, 45 N.Y.2d 520, 525 [1978]). Consequently, "[a] defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors" (People v Dixon, 29 N.Y.2d 55, 57 [1971]; see People v Fisher, 28 N.Y.3d 717, 726 [2017]; People v Haffiz, 19 N.Y.3d 883, 884 [2012]). "Only in the rare instance will a defendant be entitled to an evidentiary hearing" (People v Tinsley, 35 N.Y.2d 926, 927 [1974]; see Mitchell, 21 N.Y.3d at 966). "[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry" (Mitchell, 21 N.Y.3d at 967).
Here, the City Court did not improvidently exercise its discretion in denying, without a hearing, defendant's motion to withdraw his plea of guilty to the text messages charge. Reviewing the record as a whole and the circumstances surrounding the entry of the pleas (see People v Sougou, 26 N.Y.3d 1052, 1055 [2015]), we conclude that defendant's plea of guilty was knowingly, voluntarily, and intelligently made (see id. at 1054-1056; People v Harris, 61 N.Y.2d 9, 16-19 [1983]). Defendant proffered only conclusory and unsubstantiated assertions in support of his motion, which were contradicted by the record (see Fisher, 28 N.Y.3d at 726; Mitchell, 21 N.Y.3d at 967; Haffiz, 19 N.Y.3d at 884; Dixon, 29 N.Y.2d at 57; People v Casiano, 210 A.D.3d 692, 692-693 [2022]; Williams, 203 A.D.3d at 851; People v Matos, 176 A.D.3d 976, 976 [2019]).
We have reviewed defendant's remaining contentions and find them to be without merit.
Accordingly, the judgments of conviction are affirmed.
GARGUILO, P.J., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.