People v. Bangert

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Before TITONE
• Citation: 107 A.D.2d 752,484 N.Y.S.2d 117
• Parties: The PEOPLE, etc., Respondent, v. Edward BANGERT, Appellant.
• Decision Date: 22 January 1985

Page 117

484 N.Y.S.2d 117 107 A.D.2d 752 The PEOPLE, etc., Respondent,
v.
Edward BANGERT, Appellant. Supreme Court, Appellate Division,
Second Department. Jan. 22, 1985.

E. Thomas Boyle, P.C., Smithtown, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, Asst. Dist. Atty., Riverhead, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, WEINSTEIN and BROWN, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendant from two judgments of the County Court, Suffolk County, both rendered May 3, 1984, convicting him of manslaughter in the second degree and bail jumping in the first degree, upon his pleas of guilty, and imposing sentences. The appeals bring up for review the denial of defendant's motion to withdraw his pleas of guilty.

Judgments affirmed and this case is remitted to the County Court, Suffolk County,

Page 118

for further proceedings pursuant to CPL 460.50 (subd. 5).

The County Court correctly denied defendant's motion to withdraw his pleas of guilty. Defendant's claims of innocence and ineffective assistance of counsel are based only on defendant's unsupported allegations, which present an issue of credibility. Based upon this record, he was not entitled to withdraw his pleas (see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329; People v. Matta, 103 A.D.2d 756, 477 N.Y.S.2d 228; People v. Fridell, 93 A.D.2d 866, 461 N.Y.S.2d 375). The record, in fact, shows that defendant, at the plea allocution, unequivocally admitted his guilt and expressed satisfaction with the representation provided by his attorney.

Defendant's additional claim that he was incapacitated at the time of the pleas because he had taken an excessive amount of pain-killing drugs during the previous night is also belied by the record of the plea allocution. Defendant unequivocally stated that although he was on medication, he was aware of what was going on and that his faculties were not impaired by taking the medication. Furthermore, this is not one of those "rare instancein which an evidentiary hearing was required (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544; People v. Matta, supra; People v. Kepple, 98 A.D.2d 783, 469 N.Y.S.2d 801). Therefore, the County Court was justified in deciding the motion on the papers submitted.

Defendant's further claim that the pleas did not contain a voluntary, knowing and intelligent waiver of his rights is without merit. He was adequately informed that by...