PEOPLE v. RIVERA SANTANA (2024)

Judgment, Supreme Court, New York County (Barry Warhit, J., at plea and sentencing;  Josh E. Hanshaft, J., at motion to withdraw plea), rendered June 12, 2019, convicting defendant of criminal possession of a controlled substance in the second degree, and sentencing him to a term of 51/212 years, unanimously affirmed.

By order entered October 10, 2023, we held defendant's appeal in abeyance and remanded the matter for further proceedings on his pro se motion to withdraw his guilty plea, with new counsel to be assigned on the motion (220 A.D.3d 468, 196 N.Y.S.3d 68 [1st Dept. 2023]).  On remand, Supreme Court ordered a hearing “in an effort to resolve the factual issues presented,” including, as relevant here, with respect to whether defendant entered into the guilty plea knowingly, voluntarily, and intelligently.  After the hearing, the court denied the motion to withdraw.

The record of the plea hearing and the post-remand evidentiary hearing shows that defendant's plea represents a voluntary and intelligent choice among the alternative courses of action that were open to him (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Hayes, 220 A.D.3d 427, 197 N.Y.S.3d 486 [1st Dept. 2023], lv denied 40 N.Y.3d 1080, 202 N.Y.S.3d 764, 225 N.E.3d 883 [2023]).  Defendant claims that his relationship with plea counsel was secured by, and his entry into the plea deal was the product of, counsel's false promise of a guaranteed three-year sentence.  Defendant further claims that the plea court pressured him to plead guilty by making “coercive threats” regarding his opportunity to enter into a plea and his sentencing prospects.  We find that the hearing court did not abuse its discretion in finding that the record does not support defendant's claims (see People v. Gonzalez, 185 A.D.2d 159, 160, 587 N.Y.S.2d 157 [1st Dept. 1992], lv denied 80 N.Y.2d 904, 588 N.Y.S.2d 829, 602 N.E.2d 237 [1992]).

Defendant's valid waiver of his right to appeal forecloses his excessive sentence claim, which defendant has withdrawn as moot because he has served his sentence.  Were we to consider that claim, we perceive no basis to reduce the sentence.