People v. Brown

• Decision Date: 29 June 1998
• Citation: 675 N.Y.S.2d 555,251 A.D.2d 677
• Parties: 1998 N.Y. Slip Op. 6641 The PEOPLE, etc., Respondent, v. Marcus BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 555

675 N.Y.S.2d 555

1998 N.Y. Slip Op. 6641

The PEOPLE, etc., Respondent, v. Marcus BROWN, Appellant.

Supreme Court of New York, Appellate Division, Second Department.

June 29, 1998.

Marcus Brown, Brooklyn, N.Y., appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Diane R. Eisner of counsel; Beata Sajdak-Jones on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 16, 1995, convicting him of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

It is well settled that the right of a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the sentencing court (see, CPL 220.60[3]; People v. Ellerbe, 237 A.D.2d 299, 655 N.Y.S.2d 409). The defendant knowingly and voluntarily pleaded guilty in the presence of competent counsel after the court had advised him of the consequences of his plea during the plea allocution (see, People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170). The defendant's bare assertion that he was innocent is insufficient to warrant withdrawal of the plea (see, People v. Evans, 204 A.D.2d 346, 614 N.Y.S.2d 151; People v. Chestnut, 188 A.D.2d 480, 590 N.Y.S.2d 906). Since the basis of the defendant's application to withdraw his plea was facially without merit, no formal evidentiary hearing was necessary (see, People v. Billings, 208 A.D.2d 941, 617 N.Y.S.2d 864; People v. Morris, 118 A.D.2d 595, 499 N.Y.S.2d 13).

The remaining contentions of the defendant on this appeal were not raised in his application to withdraw his plea and therefore are not preserved for appellate review (see, People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Griffin, 186 A.D.2d 820, 589 N.Y.S.2d 501; People v. Coluccio, 170 A.D.2d 523, 566 N.Y.S.2d 87; People v. Ellis, 163 A.D.2d 611, 559 N.Y.S.2d 679).

ROSENBLATT, J.P., SULLIVAN, JOY, ALTMAN and LUCIANO, JJ., concur.