PEOPLE v. HENDERSON

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Anthony T. HENDERSON, Jr., Also Known as Butter, Defendant–Appellant.

1396

Decided: February 08, 2019

PRESENT:  WHALEN, P.J., SMITH, LINDLEY, AND DEJOSEPH, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2] ).  We previously held this case, reserved decision, and remitted the matter for a hearing upon determining that County Court (Geraci, J.) had erred in summarily denying defendant's pro se motion to withdraw his guilty plea (People v. Henderson, 137 A.D.3d 1670, 1670–1671, 28 N.Y.S.3d 198 [4th Dept. 2016] ).  In support of the motion, defendant had alleged that his attorney erroneously advised him before he pleaded guilty that his plea could be withdrawn at any time prior to sentencing (id. at 1670, 28 N.Y.S.3d 198).  Upon remittal, defendant was represented by new counsel, and County Court (Randall, J.) heard the testimony of defendant's former counsel.  Defense counsel then sought to call defendant as a witness, but the court precluded defendant's testimony and closed the hearing without rendering a decision on defendant's motion to withdraw his plea.  We concluded on resubmission that the court erred in failing to rule on defendant's motion, and we therefore held the case, reserved decision, and again remitted the matter to County Court to reopen the hearing and rule on defendant's motion after affording him an opportunity to testify (People v. Henderson, 148 A.D.3d 1779, 1780, 50 N.Y.S.3d 768 [4th Dept. 2017] ).

This matter returns to us following completion of that hearing, during which the court heard testimony from defendant and the prosecutor involved in defendant's plea colloquy.  Contrary to defendant's contention, the court did not abuse its discretion in denying his motion to withdraw his plea of guilty (see CPL 220.60[3];  People v. Muccigrosso, 269 A.D.2d 754, 754, 703 N.Y.S.2d 409 [4th Dept. 2000], lv denied 95 N.Y.2d 800, 711 N.Y.S.2d 169, 733 N.E.2d 241 [2000];  see also People v. DeLeon, 40 A.D.3d 1008, 1009, 837 N.Y.S.2d 189 [2d Dept. 2007], lv denied 9 N.Y.3d 874, 842 N.Y.S.2d 786, 874 N.E.2d 753 [2007];  see generally People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010] ).  The hearing testimony from defendant's former counsel belies defendant's allegation that he was advised by his former counsel that he could unilaterally withdraw his plea prior to sentencing, and the court did not abuse its discretion in resolving the credibility issues created by any conflict between the testimony of defendant's former counsel and the prosecutor and that of defendant (see People v. Colon, 122 A.D.3d 1309, 1310, 995 N.Y.S.2d 429 [4th Dept. 2014], lv denied 25 N.Y.3d 1200, 16 N.Y.S.3d 522, 37 N.E.3d 1165 [2015] ).  We reject defendant's further contention that his recitation of the facts during the plea colloquy “cast[ ] significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea” (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).