People v. Deliser

• Decision Date: 21 June 2011
• Citation: 85 A.D.3d 1047,2011 N.Y. Slip Op. 05517,925 N.Y.S.2d 882
• Parties: The PEOPLE, etc., respondent,v.Josue DELISER, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1047
925 N.Y.S.2d 882
2011 N.Y. Slip Op. 05517

The PEOPLE, etc., respondent,
v.
Josue DELISER, appellant.

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

June 21, 2011.

Lynn W.L. Fahey, New York, N.Y. (Winston McIntosh of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Gerges, J.), both rendered July 21, 2009, convicting him of attempted murder in the second degree under Indictment No. 2938/06, and robbery in the first degree under Indictment No. 5477/07, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

*883 “[A] guilty plea will be upheld as valid if it was entered voluntarily, knowingly and intelligently” ( People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; see People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the motion court ( see CPL 220.60[3]; People v. Frederick, 45 N.Y.2d 520, 525, 410 N.Y.S.2d 555, 382 N.E.2d 1332; People v. DeLeon, 40 A.D.3d 1008, 1008–1009, 837 N.Y.S.2d 189; People v. Mann, 32 A.D.3d 865, 866, 821 N.Y.S.2d 616; People v. Turner, 23 A.D.3d 503, 805 N.Y.S.2d 614). Here, the defendant's pleas of guilty were knowingly, voluntarily, and intelligently entered, and his claims of coercion are belied by the record ( see People v. Aguayo, 73 A.D.3d 938, 939, 899 N.Y.S.2d 878).

Moreover, contrary to the defendant's contentions, the record reveals that his attorney did not take a position adverse to his motion to withdraw his pleas ( see People v. Dickerson, 66 A.D.3d 1371, 1372, 887 N.Y.S.2d 387; People v. Brown, 36 A.D.3d 931, 828 N.Y.S.2d 550; People v. Caple, 279 A.D.2d 635, 636, 720 N.Y.S.2d 166; People v. Richards, 227 A.D.2d 419, 419, 642 N.Y.S.2d 556; cf. People v. Dixon, 63 A.D.3d 957, 880 N.Y.S.2d 529; People v. Bedoya, 53 A.D.3d 621, 861 N.Y.S.2d 788; People v. Bryant, 22 A.D.3d 676, 677, 804 N.Y.S.2d 347; People v. Earp, 7 A.D.3d 538, 539, 775 N.Y.S.2d 598). Accordingly, the Supreme Court properly denied his motion to withdraw his pleas.