People v. Caruso

• Court: New York Supreme Court Appellate Division
• Writing for the Court: MARK C. DILLON, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
• Citation: 88 A.D.3d 809,930 N.Y.S.2d 668,2011 N.Y. Slip Op. 07234
• Parties: The PEOPLE, etc., respondent,v.Jason V. CARUSO, appellant.
• Decision Date: 11 October 2011

88 A.D.3d 809
930 N.Y.S.2d 668
2011 N.Y. Slip Op. 07234

The PEOPLE, etc., respondent,
v.
Jason
v.
CARUSO, appellant.

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

Oct. 11, 2011.

[930 N.Y.S.2d 668]

Joseph F. DeFelice, Kew Gardens, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Laurie K. Gibbons of counsel), for respondent.MARK C. DILLON, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

[88 A.D.3d 809] Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Calabrese, J.), rendered September 10, 2010, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

[930 N.Y.S.2d 669]

The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the Supreme Court and generally will not be disturbed absent an improvident exercise of discretion ( see CPL 220.60[3]; People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Duncan, 78 A.D.3d 1193, 912 N.Y.S.2d 283). “Only in rare instances will a defendant be entitled to an evidentiary hearing upon a motion to withdraw a plea of guilty” ( People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818; see CPL 220.60[3]; People v. Frederick, 45 N.Y.2d 520, 524–525, 410 N.Y.S.2d 555, 382 N.E.2d 1332). The record reflects that the defendant's plea of guilty was knowing, voluntary, and intelligent ( see [88 A.D.3d 810] People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Douglas, 83 A.D.3d 1092, 1093, 921 N.Y.S.2d 324; People v. Stubbs, 110 A.D.2d 725, 728, 487 N.Y.S.2d 824). The recantation evidence submitted in support of the defendant's motion to withdraw his plea of guilty “was inherently unreliable and insufficient, alone, to justify withdrawal of the plea” ( People v. Douglas, 83 A.D.3d at 1093, 921 N.Y.S.2d 324; see People v. Mortensen, 60 A.D.3d 971, 972, 874 N.Y.S.2d 823; People v. Branton, 35 A.D.3d 1035, 1036, 826 N.Y.S.2d 489). Furthermore, the defendant's contention regarding his innocence is unsupported by the record and did not afford a basis for withdrawal of the plea of guilty ( see People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802; People...