SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
December 24, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Mark Gross, J., at plea; Helen M. Blackwood, J., at sentence), rendered February 3, 2010.
People v Mayhew (Michael)
Decided on December 24, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT:: NICOLAI, P.J., LaCAVA and LaSALLE, JJ
The judgment convicted defendant, upon his plea of guilty, of resisting arrest. The appeal from the judgment brings up for review an order of the same court (Helen M. Blackwood, J.) dated December 1, 2009 which denied defendant's motion to withdraw his guilty plea.
ORDERED that the judgment of conviction is affirmed.
Defendant was initially charged in a felony complaint with assault in the second degree (Penal Law § 120.05). At the plea proceeding, the felony charge was reduced to resisting arrest (Penal Law § 205.30). Defendant, represented by counsel, then pleaded guilty to the reduced charge and executed a misdemeanor conviction waiver of rights form acknowledging that he had had enough time to discuss the matter with his counsel and to make a decision, and that he was satisfied with the representation given by his attorney. During his plea allocution, defendant expressly stated that he was not coerced to plead guilty, and he unequivocally and voluntarily acknowledged his guilt. In addition, defendant informed the court that he had reviewed the misdemeanor conviction waiver of rights form with his counsel and that he had no further questions to ask counsel or the court regarding the waiver.
Prior to sentencing, defendant moved, insofar as is relevant to this appeal, to vacate his guilty plea on the grounds that he had not been afforded an opportunity to discuss the plea agreement with his counsel, that the plea had been coerced and that he was innocent of the charge. Defendant further alleged that he had pleaded guilty to the charge solely to avoid incarceration in a state prison. The City Court, without conducting a hearing, denied the motion.
The record in this case supports the City Court's determination that defendant's plea was entered knowingly, voluntarily and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543 ; People v Anderson, 98 AD3d 524 ). Defendant's postplea allegations that he was not afforded an opportunity to confer with his counsel and that he was coerced into pleading guilty are belied by his sworn statements during the plea allocution and the misdemeanor conviction waiver of rights form which he executed. Additionally, defendant's bare postplea assertion of innocence is unsubstantiated and belied by his statements during the plea colloquy (People v Bruno, 73 AD3d 941 ). Moreover, the fact that defendant pleaded guilty to the charge in order to avoid incarceration in a state prison does not render his plea coerced (see People v Thompkins, 233 AD2d 759, 761 ). It is clear that defendant chose between two alternative courses of action (see People v Gibson, 54 AD3d 350 ). In order to obviate the risk of a trial on a felony charge, defendant chose to accept a very favorable plea bargain. We note that defendant was no novice to the criminal justice system and clearly understood the nature of the charge to which he was pleading and willingly entered his plea (see People v Goldstein, 12 NY3d 295, 301 ).
Since a determination of a motion to withdraw a guilty plea is addressed to the sound discretion of the court (see People v Ricketts, 16 AD3d 438 ) and a hearing on such a motion should be granted only in rare instances (see People v Brown, 14 NY3d 113, 116 ; People v Wyant, 47 AD3d 1068, 1069 ), we find no basis to disturb the City Court's order denying, without a hearing, defendant's motion to withdraw his guilty plea. As that is the only issue raised on appeal, we affirm the judgment of conviction.
Nicolai, P.J., LaCava and LaSalle, JJ., concur. Decision
Date: December 24, 2012
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