PEOPLE v. HARRIS (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]), defendant contends that his waiver of the right to appeal is invalid and that County Court erred in summarily denying his pro se request to withdraw his plea of guilty without assigning new counsel to represent him. As the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as the court's explanation that the waiver would foreclose any review by a higher court “utterly ‘mischaracterized the nature of the right [that] defendant was being asked to cede’ ” (People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020]; see People v. Youngs, 183 A.D.3d 1228, 1228-1229, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020]).

Nevertheless, we reject defendant's contention that the court erred in denying without a hearing his pro se request to withdraw his guilty plea. “ ‘Permission to withdraw a guilty plea rests solely within the court's discretion ․, and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea’ ” (People v. Davis, 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015]). Furthermore, “[o]nly in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice. The defendant should be afforded [a] reasonable opportunity to present his [or her] contentions and the court should be enabled to make an informed determination” (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974]). Where, as here, the record establishes that the defendant was afforded such an opportunity, that the court was able to make an informed determination of the request, and that the defendant's request was patently without merit, the court may summarily deny the motion (see People v. Smith, 122 A.D.3d 1300, 1301-1302, 995 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015]). Furthermore, we perceive no abuse of discretion in the court's denial of the request insofar as it was based on allegations of ineffective assistance of counsel, inasmuch as, aside from defendant's unsupported and conclusory allegations of deficient representation, “ ‘nothing in the record casts doubt on the apparent effectiveness of counsel’ ” (People v. Watkins, 77 A.D.3d 1403, 1404, 909 N.Y.S.2d 233 [4th Dept. 2010], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010]; see People v. Raghnal, 185 A.D.3d 1411, 1413, 127 N.Y.S.3d 665 [4th Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 511, 158 N.E.3d 528 [2020]; see generally People v. Kurkowski, 117 A.D.3d 1442, 1443-1444, 984 N.Y.S.2d 761 [4th Dept. 2014]). Contrary to defendant's related contention, defense counsel did not take an adverse position on defendant's request to withdraw the guilty plea, and therefore the court did not abuse its discretion in failing to substitute new counsel (see People v. Weinstock, 129 A.D.3d 1663, 1664, 11 N.Y.S.3d 782 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015]).