People v. Davis

174 N.Y.S.3d 856 (Mem)

The PEOPLE, etc., respondent,

v.Michael DAVIS, appellant.

2020–07554

Ind. No. 371/19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 16, 2022

October 5, 2022

Gerald Zuckerman, Croton on Hudson, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Christine DiSalvo of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered September 17, 2020, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant entered a plea of guilty to attempted burglary in the second degree. Prior to sentencing, he moved to withdraw his plea of guilty. The Supreme Court denied the motion without a hearing and imposed sentence. The defendant appeals.

"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" ( People v. Jamison, 197 A.D.3d 569, 570, 151 N.Y.S.3d 694 [internal quotation marks omitted]; see CPL 220.60[3] ; People v. Williams, 203 A.D.3d 850, 160 N.Y.S.3d 899 ; People v. Gerald, 197 A.D.3d 1324, 1326, 153 N.Y.S.3d 588 ). In general, "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" ( People v. De Jesus, 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ). "When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare instances" ( People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; see People v. Manor, 27 N.Y.3d 1012, 1013–1014, 35 N.Y.S.3d 272, 54 N.E.3d 1143 ; People v. Hollman, 197 A.D.3d 484, 484, 151 N.Y.S.3d 158 ).

Here, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. Reviewing the record as a whole and the circumstances surrounding the entry of the plea (see People v. Sougou, 26 N.Y.3d 1052, 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ), the defendant's plea of guilty was knowingly, voluntarily, and intelligently made (see People v. Corines, 204 A.D.3d 827, 828, 166 N.Y.S.3d 260 ; People v. Price, 203 A.D.3d 955, 956, 161 N.Y.S.3d 822 ; ...