NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
May 14, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOHN GARCIA, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 16, 2008, convicting defendant, upon his plea of guilty, of grand larceny in the second degree and identity theft in the first degree, and sentencing him to concurrent terms of 1 to 3 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Nardelli, Renwick, Freedman, JJ.
After reviewing the parties' extensive submissions and employing its own familiarity with the case, the court properly denied defendant's motion to withdraw his guilty plea, in which he alleged ineffective assistance of counsel. In deciding such a motion, "[t]he nature and extent of the fact-finding procedures . . . rest largely in the discretion of the Judge to whom the motion is made. Only in the rare instance will a defendant be entitled to an evidentiary hearing." (People v Tinsley, 35 NY2d 926, 927 ; see also People v Frederick, 45 NY2d 520 ). The record establishes that defendant received effective assistance of counsel (see People v Ford, 86 NY2d 397, 404 ). Defendant did not substantiate his claim that his attorney's investigation and preparation were inadequate, the evidence submitted on the motion demonstrated that the attorney's misstatement about the post-plea appealability of a statutory speedy trial ruling came after defendant had already pleaded guilty, and defendant's claim that counsel failed to advise him of a more favorable plea offer was supported only by defendant's self-serving statement, which was contradicted by extensive circumstantial evidence.
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's remaining argument.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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