PEOPLE v. JOHNSON (2012)

Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered February 17, 2011, convicting him of attempted assault in the first degree (two counts), criminal possession of a weapon in the third degree, and menacing in the second 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 [trial court] and generally will not be disturbed absent an improvident exercise of discretion” (People v. Caruso, 88 A.D.3d 809, 809, 930 N.Y.S.2d 668; see CPL 220.60[3]; People v. Seeber, 4 N.Y.3d 780, 780, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Dazzo, 92 A.D.3d 796, 796, 938 N.Y.S.2d 446; People v. Amanze, 87 A.D.3d 1159, 1159, 929 N.Y.S.2d 876). “[A] hearing will be granted only in rare instances” (People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782; see People v. Dazzo, 92 A.D.3d at 796, 938 N.Y.S.2d 446; People v. Perez, 83 A.D.3d 738, 739, 919 N.Y.S.2d 887).

Here, the record supports the County Court's determination denying, without a hearing, the defendant's application to withdraw his plea of guilty, as his plea was entered knowingly, voluntarily, and intelligently (see People v. Dazzo, 92 A.D.3d at 796–797, 938 N.Y.S.2d 446; People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668; People v. Jackson, 87 A.D.3d 552, 553, 928 N.Y.S.2d 58; People v. Perez, 83 A.D.3d 738, 919 N.Y.S.2d 887). The defendant's allegation that his attorney coerced him to plead guilty is belied by his statements under oath acknowledging that he was voluntarily pleading guilty and that no one made any threats or forced him to enter his plea (see People v. Dazzo, 92 A.D.3d at 796–797, 938 N.Y.S.2d 446; People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668; People v. Wiedmer, 71 A.D.3d 1067, 1067, 896 N.Y.S.2d 686). Moreover, the defendant acknowledged that he was satisfied with the representation he had received from his attorney, who negotiated a favorable plea agreement on his behalf (see People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668; People v. Wiedmer, 71 A.D.3d at 1067, 896 N.Y.S.2d 686). Further, the defendant's unsubstantiated allegations that his attorney lied to him prior to his accepting the plea agreement are not supported by the record (see People v. Duah, 91 A.D.3d 884, 885, 936 N.Y.S.2d 907; People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668; People v. Dunbar, 260 A.D.2d 644, 644, 687 N.Y.S.2d 271; People v. Quijada–Lopez, 256 A.D.2d 478, 478, 683 N.Y.S.2d 432; People v. Bonds, 254 A.D.2d 430, 430, 678 N.Y.S.2d 903).

In addition, contrary to the defendant's contention that he was not informed of the direct consequences of his plea concerning the term of postrelease supervision, the record demonstrates that, prior to accepting the plea, the defendant was made aware that the maximum term of postrelease supervision he would receive was five years, which is the term of postrelease supervision he actually received at sentencing (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Gravino, 14 N.Y.3d 546, 553–554, 902 N.Y.S.2d 851, 928 N.E.2d 1048; People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

With respect to the defendant's contention that he was deprived of the effective assistance of counsel at the time of sentencing, though the defendant waived his right to appeal, the record does not demonstrate that the waiver was knowing and intelligent (see People v. Bradshaw, 18 N.Y.3d at 259, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843). However, that contention is without merit. “ ‘[A]n attorney assigned to represent a defendant in a criminal case has no duty to participate in a baseless pro se motion to withdraw a plea of guilty which was voluntarily, knowingly, and intelligently made’ “ (People v. Ford, 44 A.D.3d 1070, 1071, 844 N.Y.S.2d 400, quoting People v. Caple, 279 A.D.2d 635, 635, 720 N.Y.S.2d 166; see People v. Bruno, 73 A.D.3d 941, 942, 900 N.Y.S.2d 447; People v. Smith, 61 A.D.3d 1005, 1005–1006, 876 N.Y.S.2d 900; People v. Pooler, 58 A.D.3d 757, 757, 871 N.Y.S.2d 707). Further, contrary to the defendant's contention, the record demonstrates that defense counsel did not take an adversarial position at the sentencing proceeding regarding the defendant's application to withdraw his plea (see People v. Davis, 161 A.D.2d 787, 788–789, 556 N.Y.S.2d 664).