People v. Braun

• Decision Date: 08 November 1990
• Citation: 561 N.Y.S.2d 244,167 A.D.2d 164
• Parties: The PEOPLE of the State of New York, Respondent, v. David BRAUN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 244

561 N.Y.S.2d 244

167 A.D.2d 164

The PEOPLE of the State of New York, Respondent, v. David BRAUN, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 8, 1990.

Before KUPFERMAN, J.P., and SULLIVAN, CARRO, MILONAS and SMITH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Richard Failla, J.), rendered April 11, 1988, convicting defendant, upon his plea of guilty, of escape in the second degree and sentencing defendant as a predicate felony offender to one and one-half to three years, unanimously affirmed. Order of the same court entered December 27, 1988, denying defendant's motion to set aside the verdict pursuant to CPL 440.10, unanimously affirmed.

Defendant was arrested and charged with burglary and robbery arising out of a dispute at a Manhattan apartment. After his arrest, defendant complained of illness, and was transported to a hospital, where he escaped. Defendant was apprehended a few blocks away, but resisted re-arrest forcefully. At the plea proceeding, pursuant to a negotiated plea, defendant allocuted to waiver of Boykin rights, and made a factual allocution with respect to the charges against him. Defendant did not at that time raise any complaint concerning the quality of his representation, or the accuracy and truthfulness of his factual allocution. At the sentencing proceeding, defendant requested an adjournment which was denied, and then claimed that counsel had not been cooperative, and had insulted and intimidated him at the plea proceeding. Defendant made a bare allegation of his innocence of escape in the second degree. The court deemed defendant's pro se application to constitute an application to withdraw his plea, and summarily denied it.

We cannot say that the court abused its discretion. Defendant offered only bare allegations of innocence, coercion and ineffective representation which would not require granting his motion to withdraw the guilty plea (see, People v. Billingsley, 54 N.Y.2d 960, 445 N.Y.S.2d 148, 429 N.E.2d 826). Under the totality of these circumstances, this is not the "rare instance" in which a defendant will be "entitled to an evidentiary hearing" and the limited interrogation by the court was sufficient (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544). The court noted on the record that it had been familiar with the proceedings from the beginning, had observed counsel explaining the proceedings to defendant in...