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The People of the State of New York v. Jason Bouttry

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


August 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
JASON BOUTTRY, APPELLANT.

Appeal from a judgment of the District Court of Nassau County, First District (Valerie Alexander, J., at plea; Rhonda E. Fischer, J., at sentencing), entered September 3, 2009.

People v Bouttry (Jason)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 1, 2011

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

The judgment convicted defendant, upon his plea of guilty, of assault in the third degree. The appeal from the judgment of conviction brings up for review an order of the same court (Rhonda E. Fischer, J.) dated August 6, 2009 denying defendant's motion to withdraw his guilty plea.

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to the charged offense of assault in the third degree (Penal Law § 120.00). Prior to sentencing, defendant moved to withdraw his guilty plea. By order dated August 6, 2009, the District Court denied defendant's motion.

Vacatur of a guilty plea is not lightly granted, as such a plea is intended to "mark[] the end of a criminal case, not a gateway to further litigation" (People v Taylor, 65 NY2d 1, 5 [1985]). A motion to withdraw a plea of guilty rests within the sound discretion of the court (see People v Baret, 11 NY3d 31, 33 [2008]; People v Griffith, 78 AD3d 1194 [2010]; People v McGhee, 62 AD3d 1027 [2009]), and the court's determination should not be disturbed absent an improvident exercise of its discretion (see People v McGhee, 62 AD3d 1027; People v DeLeon, 40 AD3d 1008, 1009 [2007]). "Unsubstantiated and conclusory assertions of innocence and coercion that are contradicted by the record are insufficient to warrant withdrawal [of a guilty plea] or a hearing" (People v Griffith, 78 AD3d at 1195). A plea of guilty will be upheld if it was voluntarily, intelligently and knowingly made (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662, 666 [1988]; People v Griffith, 78 AD3d at 1195).

The District Court did not improvidently exercise its discretion in denying defendant's motion to withdraw his plea of guilty. The record reveals that defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v McGhee, 62 AD3d 1027). Defendant's unsubstantiated claim that his plea was coerced based on his desire to get out of jail was refuted by his statements during the plea allocution (see People v Wiedmer, 71 AD3d 1067 [2010]; People v Hughes, 62 AD3d 1026 [2009]), and his unsubstantiated and conclusory claims of innocence, which are contradicted by the record, are insufficient to warrant the withdrawal of the plea or a hearing (see People v Griffith, 78 AD3d at 1195).

To the extent that defendant's contention that he was deprived of the effective assistance of counsel is reviewable on appeal, the record indicates that the Legal Aid attorney provided defendant with meaningful representation in accordance with the New York State standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 [1995]; People v Johnson, 71 AD3d 1048 [2010]). Moreover, the attorney's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 [1984]).

Defendant's remaining contentions regarding his sentence are not preserved for appellate review (see People v Green, 54 NY2d 878, 880 [1981]; People v McCant, 79 AD3d 908 [2010]; People v Chi Fong Chen, 56 AD3d 488 [2008]; People v Godfrey, 33 AD3d 623 [2006]; People v Howze, 243 AD2d 652 [1997]), and we decline to review these contentions in the interest of justice (see People v Chi Fong Chen, 56 AD3d 488; People v Howze, 243 AD2d 652).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date:August 01, 2011

20110801

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