The People, etc., respondent, v. Darwin Griffith, appellant.

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

The People, etc., respondent, v. Darwin Griffith, appellant.

2009-02677 (Ind.No. 5090/07)

Decided: November 30, 2010

STEVEN W. FISHER, J.P. DANIEL D. ANGIOLILLO ARIEL E. BELEN LEONARD B. AUSTIN, JJ. Lynn W.L. Fahey, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Bruce Alderman of counsel), for respondent.

Submitted-November 16, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered March 18, 2009, convicting him of conspiracy in the second degree and criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Generally, vacatur of a plea of guilty is not lightly granted since such a plea is intended to “mark[ ] the end of a criminal case” and should not be the path toward further litigation (People v. Taylor, 65 N.Y.2d 1, 5).  “When a defendant moves to withdraw a guilty plea, the ‘fact-finding procedures' to be followed ‘rest largely in the discretion of the Judge to whom the motion is made’ ” (People v. Baret, 11 NY3d 31, 33, quoting People v. Tinsley, 35 N.Y.2d 926, 927;  see CPL 220.60[3];  People v. Alexander, 97 N.Y.2d 482, 485;  People v. Moss, 70 AD3d 862).   A plea of guilty will be upheld as valid if it was voluntarily, intelligently, and knowingly made (see People v. Fiumefreddo, 82 N.Y.2d 536, 543;  People v. Lopez, 71 N.Y.2d 662, 666).   Only rarely is a defendant entitled to a full evidentiary hearing on a motion to withdraw the plea (see People v. Tinsley, 35 N.Y.2d at 927).   Instead, it is sufficient if the court affords the defendant an opportunity to present his arguments with respect to withdrawal (see People v. Tinsley, 35 N.Y.2d 926;  People v. Fiumefreddo, 82 N.Y.2d at 543).   Unsubstantiated and conclusory assertions of innocence and coercion that are contradicted by the record are insufficient to warrant withdrawal or a hearing (see People v. Wiedmer, 71 AD3d 1067;  People v. Potter, 294 A.D.2d 603;  People v. D'Orio, 210 A.D.2d 424;  People v. Grady, 110 A.D.2d 780).

Here, the defendant's contention on appeal that his plea was not knowingly, voluntarily, or intelligently made because his prior attorney failed to inform him or misinformed him of the deportation consequences of his plea of guilty is principally based on matter dehors the record and, thus, cannot be reviewed on direct appeal (see People v. Wiedmer, 71 AD3d 1067;  People v. Alexander, 62 AD3d 719, 720;  People v. Drago, 50 AD3d 920;  People v. DeLuca, 45 AD3d 777).   To the extent that the defendant's claim is reviewable on direct appeal, the record reveals that the defendant knowingly, voluntarily, and intelligently entered his negotiated plea of guilty (see People v. Fiumefreddo, 82 N.Y.2d at 543;  People v. Lopez, 71 N.Y.2d at 666).   Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty.

The defendant's claim that he was deprived of the effective assistance of counsel because his counsel failed to inform or misinformed him of the deportation consequences of his plea of guilty, which allegedly rendered his plea involuntary, also is based principally on matter dehors the record, which cannot be reviewed on direct appeal (see People v. Wiedmer, 71 AD3d 1067;  People v. Alexander, 62 AD3d at 720;  People v. Drago, 50 AD3d 920;  People v. DeLuca, 45 AD3d 777).

FISHER, J.P., ANGIOLILLO, BELEN and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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