People v. Baret, Ind. 2735/95.

• Decision Date: 06 September 2007
• Docket Number: Ind. 2735/95.
• Citation: 2007 NY Slip Op 06569,43 A.D.3d 648,841 N.Y.S.2d 97
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROMAN BARET, Appellant.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 648

841 N.Y.S.2d 97

2007 NY Slip Op 06569

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROMAN BARET, Appellant.

Ind. 2735/95.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided September 6, 2007.

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J., on motions; John E.H. Stackhouse, J., at plea and on motion to withdraw plea; Albert Lorenzo, J., at sentence), rendered December 20, 2004, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 2 to 6 years, affirmed.

The court properly denied defendant's motion to suppress identification testimony, without a hearing, since "as a matter of law, the identification at issue could not be the product of undue suggestiveness" (People v Boyer, 6 NY3d 427, 431 [2006]; see also People v Prekuli, 256 AD2d 77 [1998], lv denied 93 NY2d 877 [1999]). An undercover officer made a series of purchases from defendant during the course of a long term operation under conditions that permitted him to familiarize himself with defendant's appearance, and identified him three days after the final purchase. Therefore, the identification was confirmatory, both under the theory set forth in People v Wharton (74 NY2d 921 [1989]) and that set forth in People v Rodriguez (79 NY2d 445 [1992]). The motion court expressly found that the same officer made all the purchases, and we reject defendant's argument to the contrary.

We find no basis to disturb the motion court's finding that the search warrant was supported by probable cause, or, given the information before the court, to disturb its denial of defendant's application for disclosure of the warrant and the materials offered in its support.

The court properly denied defendant's motion to withdraw his plea after providing him with a suitable opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]), without ordering a formal hearing. The minutes of the plea allocution establish that defendant's plea was knowing, intelligent and voluntary. He acknowledged during the allocution that no one had forced him to accept the plea offer, and that he was pleading guilty of his own free will. The claim raised in his motion to vacate his plea was too vague and unsubstantiated to contradict the affirmative statements contained in that allocution (see People v Cosey, 286 AD2d 647 [2001], lv denied 97 NY2d 655 [2001]). Even if his assertions are accepted as true, they are insufficient to create bona fide grounds to demonstrate that his plea was involuntary.

Defendant asserted that his codefendant, Reynardo Nunez, had threatened him if he did not plead guilty in accordance with the "no-split" plea offer. Specifically, defendant stated in his affidavit in support of the motion to vacate the plea that Nunez told him he "better do the right thing and plead guilty" or Nunez would "make sure he did the right thing," and that he would "do what he had to do" if defendant did not plead guilty. Even accepting these assertions as true, they are insufficient to establish that he entered into the plea involuntarily. To vacate a guilty plea, the moving defendant must provide a factual basis for a conclusion that it was actually involuntary. A claimed vague threat does not satisfy this requirement. Enough specific factual assertions must be provided that, if proved would justify a finding of nonvoluntariness. Absent information as to, for instance, the codefendant's ability to carry out the veiled threat, or some other reason to justify a belief that the codefendant would have the capability, means and inclination to harm him, defendant's assertions fail to make the type of showing which would necessitate an evidentiary hearing on the issue of the voluntariness of his plea.

Concur — Tom, J.P., Saxe and Sullivan, JJ.

Marlow and Williams, JJ., dissent in a memorandum by Marlow, J., as follows:

I would hold this appeal in abeyance and remand for a hearing to determine whether defendant's plea was voluntary. Defendant made specific factual assertions to support the motion to withdraw his plea. I believe, under these particular circumstances, they require a hearing.

A Bronx County grand jury charged defendant with criminal sale of a controlled substance in the third degree (six counts) and criminal possession of a controlled substance in the third degree (six counts). Codefendant Reynardo Nunez was charged with one count each of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Both defendant and the codefendant were also charged with acting-in-concert to commit the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the fourth degree.

The People offered defendant and the codefendant a "no-split plea" with a promised sentence of 2 to 6 years' imprisonment and probation, respectively. In a "no-split" or "connected" plea, all defendants must accept the respective plea offers or all must proceed to trial, with the accompanying risks of enhanced punishment.

The court allocuted defendant and the codefendant at the same time and in each other's presence. In an otherwise adequate allocution, defendant entered his guilty plea to one count of criminal sale of a controlled substance in the third degree. The court promised defendant a sentence of 2 to 6 years, subject to certain conditions. Specifically, the court warned defendant that, inter alia, if he failed to...