People v. Amos

• Decision Date: 13 October 2021
• Docket Number: Ind. 10464/16,2021-05577
• Parties: The People of the State of New York, respondent, v. Shamel Amos, appellant.
• Court: New York Supreme Court

The People of the State of New York, respondent,
v.
Shamel Amos, appellant.

No. 2021-05577

Ind. No. 10464/16

Supreme Court of New York, Second Department

October 13, 2021

Justin C. Bonus, Forest Hills, NY, for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Dmitriy Povazhuk of counsel), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, ALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (ShawnDya Simpson, J., at plea; Martin P. Murphy, J., at motion; Donald Leo, J., at sentencing), rendered November 27, 2018, convicting him of criminal possession of a weapon in the second degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Kings County, for further proceedings, including a hearing, on the defendant's motion to withdraw his plea of guilty, and thereafter a report to this Court as to the Supreme Court's findings with respect to whether the defendant has established his entitlement to the withdrawal of his plea, and the appeal is held in abeyance pending receipt of the Supreme Court's report, which shall be filed with all convenient speed.

The defendant was charged with the unlawful possession of various firearms after a warrant was executed at his mother's residence. The defendant agreed to enter into a plea agreement with the prosecuting authorities. Pursuant to that agreement, the defendant pleaded guilty to two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[3]), in return for a promised sentence of two concurrent terms of seven years of imprisonment, to be followed by a period of five years of postrelease supervision.

After obtaining new counsel, the defendant made a written pre-sentence motion to withdraw his plea pursuant to CPL 220.60(3). The defendant contended that he had a viable defense which he had not understood at the time that he agreed to plead guilty, and that his plea of guilty was not knowing, intelligent, and voluntary.

The People opposed the defendant's motion to withdraw his plea. The People contended that "[t]here is ample evidence showing the defendant possessed the firearms."

The Supreme Court denied the defendant's motion without holding a hearing. The court determined that "[w]hen there is nothing apparent from the plea minutes that demonstrates the defendant's inability to comprehend the proceedings or work with his or her counsel[ ] or that the defendant appeared confused or disoriented, a guilty plea cannot be withdrawn" (emphasis omitted). After listing the various statements made by the defendant at the plea proceeding, the court concluded that the "defendant's allegations are belied by the record and accordingly are not reviewable by this court" (emphasis omitted).

The defendant was subsequently sentenced, in accordance with the plea agreement, to two concurrent terms of seven years of imprisonment, to be followed by a period of five years of postrelease supervision. The defendant appeals.

On appeal, the defendant contends, among other things, that the Supreme Court erred in denying his motion to withdraw his plea of guilty without holding a hearing. The defendant is correct.

In general, "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" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827, 829; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880). "A defendant is not entitled to withdraw his guilty plea based on a[n]... unsupported claim" (People...