Appeal from a judgment of the District Court of Nassau County, First District (Rhonda E. Fischer, J.), rendered September 22, 2010.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2012
PRESENT: NICOLAI, P.J., LaCAVA and LaSALLE, JJ
The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree.
ORDERED that the judgment of conviction is affirmed.
Defendant pleaded guilty to criminal contempt in the second degree (Penal Law § 215.50 ) based on a charge of violation of an order of protection. Prior to sentencing, defendant moved to withdraw his plea pursuant to CPL 220.60, arguing, among other things, that he was innocent. By order dated July 16, 2010, the District Court denied defendant's motion. On the day of sentencing, September 22, 2010, after the District Court had informed defendant that an order of protection would be issued directing defendant to stay away from the complainant, defendant argued that his plea was not knowing or voluntary because he did not know that such an order would be issued, and that he would not have pleaded guilty had he known. Defendant again claimed that he was innocent. The court proceeded to sentence defendant.
On appeal, defendant contends, among other things, that the accusatory instrument was jurisdictionally defective because it failed to allege that he had knowledge of the protective order he was charged with violating; that his plea was not knowing and voluntary because he did not know that an order of protection would be issued directing him to stay away from the complainant; and that his due process rights were violated because the District Court failed to inquire into his claim of innocence at sentencing, or to address his attempt to withdraw his plea at sentencing.
A challenge to the facial sufficiency of an accusatory instrument based on non-waivable jurisdictional defects is not forfeited by a guilty plea (see People v Dreyden, 15 NY3d 100 ; People v Kalin, 12 NY3d 225 ; People v Konieczny, 2 NY3d 569 ). Therefore, defendant's contention must be reviewed despite his failure to raise it in the District Court (see People v Kalin, 12 NY3d at 229).
The essential elements of criminal contempt in the second degree (Penal Law § 215.50 ) are that a lawful order of the court was in effect and was clearly expressed, that the defendant had knowledge of its provisions (although not necessarily through actual service of the order) and that the defendant intentionally disobeyed it (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 ). Defendant contends that the accusatory instrument failed to establish that he had knowledge of the order of protection. However, the accusatory instrument - - which incorporates the contents of the annexed order of protection by reference, along with the supporting deposition - - contains allegations that defendant was served with the order of protection and was present in court when it was issued (see People v Inserra, 4 NY3d 30, 33 ; People v Konieczny, 2 NY3d 569). Consequently, defendant's knowledge of the order of protection was adequately alleged in the accusatory instrument.
Defendant's challenge to the voluntariness of his plea survives his waiver of appeal, and has been preserved for appellate review by his timely motion to withdraw his plea (see People v Sparcino, 78 AD3d 1508 ; People v Johnson, 77 AD3d 986 ). The determination of defendant's motion to withdraw his plea of guilty rested within the sound discretion of the District Court (see People v Baret, 11 NY3d 31, 33 ; People v Griffith, 78 AD3d 1194 ; People v McGhee, 62 AD3d 1027 ), and its determination should not be disturbed absent an improvident exercise of discretion (see People v DeLeon, 40 AD3d 1008, 1009 ). "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 Caruso, 88 AD3d 809 ).
A review of the record indicates that defendant's plea of guilty was voluntary, intelligent and knowing (see People v Fiumefreddo, 82 NY2d 536, 543 ; People v Lopez, 71 NY2d 662, 666 ; People v Caruso, 88 AD3d 809; People v Douglas, 83 AD3d 1092, 1093 ). The recantation evidence submitted in support of defendant's motion to withdraw his plea of guilty "was inherently unreliable and insufficient, alone, to justify withdrawal of the plea" (People v Douglas, 83 AD3d at 1093; see People v Caruso, 88 AD3d at 810; People v Mortensen, 60 AD3d 971, 972 ; People v Branton, 35 AD3d 1035, 1036 ). Moreover, defendant's contention regarding his innocence is unsupported by the record and did not afford a basis for the withdrawal of the plea of guilty (see People v Alexander, 97 NY2d 482, 485 ; People v Douglas, 83 AD3d at 1093; People v Duncan, 78 AD3d 1193 ). With respect to defendant's contention that his due process rights were violated because the District Court failed to inquire into his claim of innocence and to address his attempt to withdraw his plea at sentencing, we note that defendant had previously made a written motion to withdraw his plea, in which he had asserted his innocence. The District Court thoroughly reviewed, considered and ...