PEOPLE v. DAVIS (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered February 2, 2007, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

At the time the defendant entered his plea of guilty, he was still subject to an undischarged term of imprisonment for a previous conviction.   The Supreme Court made no representation as to whether the promised sentence in this case would run concurrently with or consecutively to that term.   The following day, the court clarified the sentencing promise, informing the defendant that it had always intended to order the promised sentence to run consecutively to the undischarged term.   In response to the court's questions, and after consultation with his attorney, the defendant affirmed that his understanding of the sentencing promise had been the same as the court's.

Contrary to the defendant's contentions, which were raised both in his main brief and in Point I of his supplemental pro se brief, the court neither expressly nor impliedly promised that his sentence would run concurrently with his undischarged term, and thus, the defendant was sentenced in full accordance with the plea agreement (see People v. Flores, 261 A.D.2d 338, 690 N.Y.S.2d 425).   Moreover, the defendant's allegation that the court unilaterally changed the sentencing promise, which was also raised both in his main brief and in Point I of his supplemental pro se brief, is either unsubstantiated or belied by his statements during the plea proceedings (see People v. Palmer, 29 A.D.3d 606, 815 N.Y.S.2d 129;  People v. Tissiera, 22 A.D.3d 611, 612, 801 N.Y.S.2d 747).   Accordingly, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty (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. Levy, 39 A.D.3d 670, 831 N.Y.S.2d 909).