People v. Brandon

• Decision Date: 12 December 2013
• Citation: 112 A.D.3d 1069,976 N.Y.S.2d 334,2013 N.Y. Slip Op. 08299
• Parties: The PEOPLE of the State of New York, Respondent, v. Dominick A. BRANDON, Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1069

976 N.Y.S.2d 334

2013 N.Y. Slip Op. 08299

The PEOPLE of the State of New York, Respondent,

v.Dominick A. BRANDON, Appellant.

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

Dec. 12, 2013.

Allen E. Stone Jr., Vestal, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ.

EGAN Jr., J.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered May 7, 2012, convicting defendant upon his plea of guilty of the crimes of arson in the second degree, attempted rape in the first degree and sexual abuse in the first degree.

Pursuant to a negotiated plea agreement that resolved two indictments and other pending misdemeanor charges against him, defendant pleaded guilty to arson in the second degree, attempted rape in the first degree and sexual abuse in the first degree. Prior to sentencing, defendant sent a letter to County Court expressing his desire to withdraw his plea—contending that he was innocent, that defense counsel had pressured him to plead guilty and that he had not been provided with meaningful representation. Following a detailed colloquy with defendant, County Court denied the motion and thereafter sentenced defendant upon each count, as promised, to five years in prison followed by five years of postrelease supervision—said sentences to run concurrently. Defendant now appeals.

We affirm. “The decision to permit withdrawal of a guilty plea is a matter within the trial court's sound discretion, and a hearing is required only where the record presents a genuine question of fact as to its voluntariness” (People v. Carbone, 101 A.D.3d 1232, 1234, 956 N.Y.S.2d 221 [2012] [internal quotation marks and citations omitted]; see People v. Galvan, 107 A.D.3d 1058, 1058, 966 N.Y.S.2d 286 [2013], lv. denied21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013] ). Here, the plea colloquy reflects, among other things, that County Court apprised defendant of the consequences of his plea and that defendant, in turn, evidenced his understanding of the terms of the plea agreement, freely admitted his guilt and indicated that he was both satisfied with counsel's services and had been afforded sufficient opportunity to confer with counsel prior to entering his plea. “Inasmuch as nothing in the record casts doubt upon defendant's guilt and defendant's postplea assertions of innocence and undue pressure from counsel are wholly unsubstantiated, County Court properly denied the motion to withdraw the plea without a hearing” (People v. Arnold, 102 A.D.3d 1061, 1062, 958 N.Y.S.2d 540 [2013] [citations omitted]; see People v. Hoyt, 106 A.D.3d 1340, 1340, 965 N.Y.S.2d 253 [2013]; People v. Herringshaw, 83 A.D.3d 1133, 1133–1134, 920 N.Y.S.2d 470 [2011] ).

To the extent that defendant contends that County Court failed to apprise him of his right to remain silent prior to accepting his plea upon the sex crimes, we note that defendant's motion to withdraw his plea was not premised upon this ground and there is no indication that defendant moved to vacate the judgment of conviction. Accordingly, this argument is not preserved for our review ( see People v. Dame, 100 A.D.3d 1032, 1033, 952 N.Y.S.2d 684 [2012], lv. denied21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1277 [2013]; People v. Escalante, 16 A.D.3d 984, 984–985, 792 N.Y.S.2d 253 [2005], lvs. denied5 N.Y.3d 788, 793, 801 N.Y.S.2d 809, 835 N.E.2d 669 [2005] ). In any event, “a defendant need not be advised of every specific right to which he or she is waiving as a result of a guilty plea, as long as the defendant...