People v. Dashnaw
| Decision Date | 01 April 1999 |
| Citation | 688 N.Y.S.2d 268,260 A.D.2d 658 |
| Court | New York Supreme Court — Appellate Division |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>PAUL DASHNAW, Appellant. |
Mikoll, J. P., Mercure, Crew III and Peters, JJ., concur.
As the result of allegations that defendant had sexual contact with a seven-year-old child, he was indicted on three counts of sexual abuse in the first degree and one count of sodomy in the first degree. After a mistrial, defendant entered into a plea bargain agreement pursuant to which he agreed to plead guilty to one count of sexual abuse in the first degree in full satisfaction of the indictment in exchange for a sentence of 2½ to 5 years in prison. On the day of sentencing, defendant submitted a pro se letter to County Court requesting permission to withdraw his guilty plea and proceed to a second trial. The basis of the request was that he was pressured into pleading guilty by his attorney, from whom he received "bad representation", even though he was innocent. County Court postponed sentencing and appointed defendant ancillary counsel who filed papers on defendant's behalf with respect to the motion to vacate. County Court subsequently denied the motion and sentenced defendant in accordance with the plea agreement. Defendant appeals.
In our view, County Court did not abuse its discretion by denying defendant's motion to vacate his plea of guilty without a hearing (see, CPL 220.60 [3]). The minutes of the plea allocution disclose a knowing, intelligent and voluntary plea of guilty. Defendant denied consuming any alcohol, medication or drugs within the 24 hours preceding the allocution, he indicated that he had sufficient time to discuss the plea with his attorney with whose services he was satisfied, and he admitted that he had sexual contact with a child less than 11 years old in December 1996. Contrary to defendant's contentions, nothing in the record, including the presentence investigation report, supports his claim that his plea should have been vacated because of any conduct on the part of counsel or because he was in fact innocent. The mere fact that his attorney advised him to plead guilty to avoid a harsher sentence if convicted after a second trial is not tantamount to undue pressure or coercion (see, People v Cook, 252 AD2d 595; People v Mohammed, 208 AD2d 1118, 1119, lv denied 85 NY2d 941).
Moreover, we find, as did County Court in denying the motion, that there was a sufficient factual basis for defendant's plea and that it was knowingly and voluntarily made by him. Indeed, "`[w]here a defendant has been fully informed of the rights he [or she] is waiving by pleading guilty and proceeds to admit the acts constituting the crime, a subsequent protestation of innocence which is not substantiated by any...
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