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

The PEOPLE, etc., respondent, v. Kevin TORRES, appellant.


Decided: March 10, 2021

MARK C. DILLON, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ. Jillian S. Harrington, Staten Island, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Mary Faldich of counsel), for respondent.


Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A. Harrington, J.), rendered April 26, 2019, convicting him of conspiracy in the second degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with a number of conspiracy offenses arising from his alleged involvement in gang-related murder and drug activity.  On May 10, 2018, the defendant pleaded guilty to two counts of conspiracy in the second degree.  About a month later, the defendant was charged in a federal indictment for separate gang-related conduct that occurred prior to the conduct giving rise to the instant charges.  In November 2018, prior to sentencing, the defendant moved to withdraw his plea of guilty.  The Supreme Court denied the motion without a hearing.  The defendant appeals.

“ ‘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’ ” (People v. Bhuiyan, 181 A.D.3d 699, 699, 120 N.Y.S.3d 400, quoting People v. Bennett, 115 A.D.3d 973, 973–974, 982 N.Y.S.2d 554 [internal quotation marks omitted];  see CPL 220.60[3];  People v. Balbuenatorres, 179 A.D.3d 828, 829, 113 N.Y.S.3d 890).  “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and 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, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;  see People v. Bhuiyan, 181 A.D.3d at 700, 120 N.Y.S.3d 400).  “ ‘Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement’ ” (People v. Bhuiyan, 181 A.D.3d at 700, 120 N.Y.S.3d 400, quoting People v. Jackson, 170 A.D.3d 1040, 1040, 96 N.Y.S.3d 330).  A defendant's contention that his or her plea was not knowing, voluntary, and intelligent survives a valid appeal waiver (see People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371).

Here, the Supreme Court did not improvidently exercise its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty.  Reviewing the record as a whole and the circumstances surrounding the entry of the plea (see People v. Sougou, 26 N.Y.3d 1052, 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196), we conclude that the defendant's plea of guilty was knowingly, voluntarily, and intelligently made.  In particular, the evidence the defendant submitted in support of his motion was insufficient to establish fraud or mistake in the inducement based on the similar but distinct federal charges that arose subsequent to his plea.  Where, as here, “the guilty plea was voluntarily made with the advice of counsel following an appraisal of ․ the relevant factors” (People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329), the defendant “is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence” (People v. Boyd, 129 A.D.3d 854, 854, 10 N.Y.S.3d 339 [internal quotation marks omitted] ).

The defendant's further contention that his plea was not knowing, voluntary, or intelligent because he was not advised how the tolling provisions of Penal Law § 70.06(1)(b)(v) would impact the possible imposition of an enhanced sentence as a prior felony offender is unpreserved for appellate review, because he did not move to withdraw his plea of guilty on this ground prior to the imposition of sentence (see People v. Leasure, 177 A.D.3d 770, 772, 114 N.Y.S.3d 367;  People v. Rodriguez–Abreu, 170 A.D.3d 895, 896, 93 N.Y.S.3d 858).  In any event, the defendant's contention is without merit (see People v. King, 166 A.D.3d 1236, 1237, 86 N.Y.S.3d 679;  People v. Richardson, 132 A.D.3d 1022, 1022–1023, 17 N.Y.S.3d 196).

Contrary to the defendant's further contention, he was not deprived of the effective assistance of counsel with respect to his plea (see People v. Joseph, 142 A.D.3d 627, 627–628, 36 N.Y.S.3d 605).


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