People v. Dazzo

• Court: New York Supreme Court Appellate Division
• Citation: 92 A.D.3d 796,2012 N.Y. Slip Op. 01268,938 N.Y.S.2d 446
• Parties: The PEOPLE, etc., Respondent, v. Robert DAZZO, Appellant.
• Decision Date: 14 February 2012

2012 N.Y. Slip Op. 01268
92 A.D.3d 796
938 N.Y.S.2d 446

The PEOPLE, etc., Respondent,
v.
Robert DAZZO, Appellant.

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

Feb. 14, 2012.

Anthony Colleluori & Associates, PLLC, Melville, N.Y. (Alena Shautsova of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Joseph Mogelnicki of counsel), for respondent.

[92 A.D.3d 796] Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.), rendered January 13, 2010, convicting him of assault in the second degree and assault in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court did not improvidently exercise its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty is addressed to the sound discretion of the Supreme Court, and its determination generally will not be disturbed absent an improvident exercise of discretion ( see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Caruso, 88 A.D.3d 809, 930 N.Y.S.2d 668; People v. Amanze, 87 A.D.3d 1159, 929 N.Y.S.2d 876; People v. Perez, 83 A.D.3d 738, 739, 919 N.Y.S.2d 887). “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest [s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be required only in rare instances” ( People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544; see People v. Caruso, 88 A.D.3d at 809, 930 N.Y.S.2d 668).

Here, the record supports the Supreme Court's determination that the defendant's plea was entered knowingly, voluntarily, and intelligently ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Harris, 61 N.Y.2d 9, 16–17, 471 N.Y.S.2d 61, 459 N.E.2d 170). The defendant's postplea assertions regarding his innocence and the defense of justification contradicted the admissions he made under oath at his plea allocution, and were insufficient to warrant withdrawal of his plea or a hearing ( see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329; People v. Douglas, 83 A.D.3d 1092, 1093, 921 N.Y.S.2d 324;

[938 N.Y.S.2d 447]

People v. Perez, 83 A.D.3d at 739, 919 N.Y.S.2d 887; People v. Bunn, 79 A.D.3d...