The People of the State of New York, Respondent, v. Arthur Smith, Appellant. (2024)

ORDERED that the judgments of conviction are affirmed.

In satisfaction of several accusatory instruments, defendant pleaded guilty to two charges of criminal contempt in the second degree (Penal Law § 215.50 [3]) for violating two orders of protection, each in favor of a different victim. The first charge stemmed from text messages defendant sent to the mother of his child that stated, in substance, "Why didn't you tell me you were on vacation. Too many foolish games." The second charge stemmed from defendant waiting in his car outside of the other victim's apartment building. Prior to sentencing, defendant received assignment of new counsel and filed a motion to withdraw both guilty pleas. As relevant to this appeal,

 ¹ defendant asserted that his plea regarding the text messages charge must be vacated because he failed to allocute to his intent to violate that order of protection or to the fact that he was not communicating with the victim to establish visitation with his child, which was a permitted communication under the order of protection. In support of his motion, defendant submitted an affidavit that generally asserted that he was communicating with the victim about visitation, but did not otherwise mention, address, or provide context for the text messages. The motion court denied defendant's motion and imposed a two-year term of probation on each conviction, to run concurrently. On appeal, defendant contends that the court improvidently denied, without a hearing, the branch of his motion seeking to withdraw his plea of guilty regarding the text messages charge and that his second plea should be vacated along with the first, citing People v Pichardo (1 NY3d 126 [2003]).

Contrary to defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v Thomas, 34 NY3d 545, 564 [2019]; People v Sanders, 25 NY3d 337, 339-342 [2015]; People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Lopez, 6 NY3d 248, 254-255, 257 [2006]; People v Arscott, 63 Misc 3d 130[A], 2019 NY Slip Op 50410[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; cf. People v Floyd, 218 AD3d 606, 606 [2023]). Defendant's valid waiver of his right to appeal precludes appellate review of his contentions except to the extent that his claims implicate the voluntariness of the relevant plea (see People v Zapata, 158 AD3d 778, 778 [2018], citing People v McErlean, 149 AD3d 872, 873 [2017]; see also People v Williams, 203 AD3d 850, 850 [2022]).

"The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of that discretion" (Williams, 203 AD3d at 850 [alteration and internal quotation marks omitted], see CPL 340.20 [1], 220.60 [3]; People v Seeber, 4 NY3d 780, 780 [2005]; People v Alexander, 97 NY2d 482, 485 [2002]). Such a motion "must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (Williams, 203 AD3d at 850 [internal quotation marks omitted]). The motion court has "broad discretion in its fact-finding inquiry on the motion" (People v Mitchell, 21 NY3d 964, 966 [2013]), so long as it gives a "defendant a reasonable opportunity to advance his claims from which an informed and prudent determination can be rendered" (People v Frederick, 45 NY2d 520, 525 [1978]). Consequently, "[a] defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors" (People v Dixon, 29 NY2d 55, 57 [1971]; see People v Fisher, 28 NY3d 717, 726 [2017]; People v Haffiz, 19 NY3d 883, 884 [2012]). "Only in the rare instance will a defendant be entitled to an evidentiary hearing" (People v Tinsley, 35 NY2d 926, 927 [1974]; see Mitchell, 21 NY3d at 966). "[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry" (Mitchell, 21 NY3d at 967).

Here, the City Court did not improvidently exercise its discretion in denying, without a hearing, defendant's motion to withdraw his plea of guilty to the text messages charge. Reviewing the record as a whole and the circumstances surrounding the entry of the pleas (see People v Sougou, 26 NY3d 1052, 1055 [2015]), we conclude that defendant's plea of guilty was knowingly, voluntarily, and intelligently made (see id. at 1054-1056; People v Harris, 61 NY2d 9, 16-19 [1983]). Defendant proffered only conclusory and unsubstantiated assertions in support of his motion, which were contradicted by the record (see Fisher, 28 NY3d at 726; Mitchell, 21 NY3d at 967; Haffiz, 19 NY3d at 884; Dixon, 29 NY2d at 57; People v Casiano, 210 AD3d 692, 692-693 [2022]; Williams, 203 AD3d at 851; People v Matos, 176 AD3d 976, 976 [2019]).

We have reviewed defendant's remaining contentions and find them to be without merit.

Accordingly, the judgments of conviction are affirmed.

GARGUILO, P.J., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: October 17, 2024

FOOTNOTES

1.   On appeal, defendant abandons the argument raised in his motion that the plea regarding him waiting in a car required vacatur because the factual allocution misidentified the date and issuing judge of the underlying order of protection.