PEOPLE v. GULLY (2005)

Appeals by the defendant from two judgments of the County Court, Westchester County (Zambelli, J.), both rendered September 25, 2001, convicting him of grand larceny in the fourth degree under Indictment Number 99-01511, upon his plea of guilty, and robbery in the second degree and grand larceny in the fourth degree under Indictment Number 99-01512, upon a jury verdict, and imposing sentences.

ORDERED that the judgments are affirmed.

 The defendant knowingly, intelligently, and voluntarily waived his right to appeal his conviction under Indictment Number 99-01511, and withdrew all motions as part of his plea agreement.   Accordingly, the plea agreement forecloses appellate review of the denial of the defendant's motion to suppress identification testimony (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. McClane, 7 A.D.3d 641, 642, 775 N.Y.S.2d 882;  People v. Malik, 6 A.D.3d 461, 773 N.Y.S.2d 885;  People v. Scott, 286 A.D.2d 352, 353, 728 N.Y.S.2d 688).   The County Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty since the defendant failed to support his conclusory allegations of innocence (see CPL 220.60;  People v. Dickerson, 163 A.D.2d 610, 611, 559 N.Y.S.2d 40).   The defendant's claims of coercion and ineffective assistance of counsel, upon which the motion was based, are belied by the record (see People v. Holmes, 303 A.D.2d 690, 756 N.Y.S.2d 778;  People v. Telfair, 299 A.D.2d 429, 749 N.Y.S.2d 436;  People v. Charles, 256 A.D.2d 472, 683 N.Y.S.2d 438).

 With respect to Indictment Number 99-01512, the County Court properly denied the defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) to the prosecutor's use of peremptory challenges against certain black prospective jurors.   The defendant failed to demonstrate that the race-neutral reasons advanced by the prosecutor were pretextual (see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Barnes, 4 A.D.3d 433, 434, 771 N.Y.S.2d 359).

Contrary to the defendant's contention, the County Court providently exercised its discretion in making its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413;  People v. Guarino, 131 A.D.2d 875, 517 N.Y.S.2d 231;  People v. Sevilla, 113 A.D.2d 960, 493 N.Y.S.2d 858).