People v. Leshore

208 A.D.3d 1364

174 N.Y.S.3d 604 (Mem)

The PEOPLE, etc., respondent,

v.Vernon LESHORE, appellant.

2019-00387

Ind. No. 164/17

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

Submitted—September 6, 2022

September 28, 2022

Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Marina Arshakyan of counsel), for respondent.

HECTOR D. LASALLE, P.J., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered November 27, 2018, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, and assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty. "A motion to withdraw a plea of guilty rests within the sound discretion of the court, and generally the court's determination will not be disturbed absent an improvident exercise of discretion" ( People v. Boria, 157 A.D.3d 811, 811, 69 N.Y.S.3d 3 ; see CPL 220.60[3] ; People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 ; People v. Street, 144 A.D.3d 711, 711–712, 39 N.Y.S.3d 824 ; People v. Jemmott, 125 A.D.3d 1005, 1006, 5 N.Y.S.3d 447 ). " ‘Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement’ " ( People v. Boria, 157 A.D.3d at 811, 69 N.Y.S.3d 3, quoting People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ; see People v. Tomlinson, 178 A.D.3d 967, 967, 112 N.Y.S.3d 522 ). Here, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Alexander, 97 N.Y.2d at 486, 743 N.Y.S.2d 45, 769 N.E.2d 802 ).

By pleading guilty, the defendant forfeited appellate review of his claim of ineffective assistance of counsel to the extent that the claim does not directly involve the plea negotiation (see People v. Boria, 157 A.D.3d at 812, 69 N.Y.S.3d 3 ; People v. Dunne, 106 A.D.3d 928, 928, 964 N.Y.S.2d 663 ). To the extent that the defendant contends that ineffective assistance of counsel affected the voluntariness of his plea, the record demonstrates that the defendant received the effective assistance of counsel (see People v. Penaranda, 178 A.D.3d 858, 858, 111 N.Y.S.3d 553 ; People v. Boria, 157...