The People, etc., respondent, v. Jason V. Caruso, appellant. (2011)

Argued—September 23, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Calabrese, J.), rendered September 10, 2010, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the Supreme Court and generally will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3];  People v. Seeber, 4 NY3d 780;  People v. Duncan, 78 AD3d 1193).  “Only in rare instances will a defendant be entitled to an evidentiary hearing upon a motion to withdraw a plea of guilty” (People v. Smith, 54 AD3d 879, 880;  see CPL 220.60[3];  People v. Frederick, 45 N.Y.2d 520, 524–525).   The record reflects that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Fiumefreddo, 82 N.Y.2d 536, 543;  People v. Lopez, 71 N.Y.2d 662, 666;  People v. Harris, 61 N.Y.2d 9, 17;  People v. Douglas, 83 AD3d 1092, 1093;  People v. Stubbs, 110 A.D.2d 725, 728).   The recantation evidence submitted in support of the defendant's motion to withdraw his plea of guilty “was inherently unreliable and insufficient, alone, to justify withdrawal of the plea” (People v. Douglas, 83 AD3d at 1093;  see People v. Mortensen, 60 AD3d 971, 972;  People v. Branton, 35 AD3d 1035, 1036).   Furthermore, the defendant's contention regarding his innocence is unsupported by the record and did not afford a basis for withdrawal of the plea of guilty (see People v. Alexander, 97 N.Y.2d 482, 485;  People v. Douglas, 83 AD3d at 1093;  People v. Duncan, 78 AD3d 1193).

The defendant's assertions that defense counsel forced him to plead guilty and that he was deprived of the effective assistance of counsel are belied by his statements under oath on the record acknowledging that his plea had not been coerced and that the plea was being entered of his own free will (see People v. Douglas, 83 AD3d at 1093;  People v. Duncan, 78 AD3d 1193).   Further, “ ‘[t]he defendant expressed no dissatisfaction with his counsel at the time of the plea, after the court had fully apprised him of the consequences of pleading guilty’ ” (People v. Douglas, 83 AD3d at 1093, quoting People v. Hall, 195 A.D.2d 521, 522).   The defendant received an advantageous plea, and there is nothing in the record which casts doubt on the apparent effectiveness of counsel (see People v. Henry, 95 N.Y.2d 563, 565;  People v. Benevento, 91 N.Y.2d 708, 713;  People v. Ford, 86 N.Y.2d 397, 404;  People v. Yarborough, 83 AD3d 875).   Moreover, the defendant's claim of ineffective assistance of counsel was largely based upon unsubstantiated conclusory allegations and, thus, his motion pursuant to CPL 220.60(3) was properly denied without a hearing (see People v. Alexander, 97 N.Y.2d at 486;  People v. Benevento, 91 N.Y.2d at 712–713;  People v. Douglas, 83 AD3d at 1093;  People v. Dunbar, 260 A.D.2d 644).

DILLON, J.P., BELEN, ROMAN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court