People v. Duart

• Decision Date: 30 November 2016
• Citation: 2016 N.Y. Slip Op. 08091,144 A.D.3d 1173,41 N.Y.S.3d 747
• Parties: The PEOPLE, etc., respondent, v. Douglas DUART, appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1173

41 N.Y.S.3d 747

2016 N.Y. Slip Op. 08091

The PEOPLE, etc., respondent,

v.Douglas DUART, appellant.

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

Nov. 30, 2016.

Steven A. Feldman, Uniondale, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Caren C. Manzello of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

Appeals by the defendant from (1) a judgment of the County Court, Suffolk County (Kahn, J.), rendered April 1, 2009, convicting him of attempted use of a child in a sexual performance under Superior Court Information No. 553/09, upon his plea of guilty, and imposing sentence, (2) a judgment of the same court rendered January 25, 2011, convicting him of attempted use of a child in a sexual performance under Superior Court Information No. 2799/10, upon his plea of guilty, and imposing sentence, and (3) an amended judgment of the same court, also rendered January 25, 2011, revoking a sentence of probation previously imposed by the same court upon a finding that he violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted use of a child in a sexual performance under Superior Court Information No. 553/09. By decision and order of this Court dated January 22, 2014, the matter was remitted to the County Court, Suffolk County, for a hearing on that branch of the defendant's motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance under Superior Court Information No. 2799/10, for which the defendant was to be appointed new counsel, and for a new determination of that branch of the motion thereafter (see People v. Duart, 113 A.D.3d 788, 978 N.Y.S.2d 369 ). The appeals were held in abeyance pending receipt of a report from the County Court. The County Court has now submitted its report.

ORDERED that the judgments and the amended judgment are affirmed.

In a decision and order dated January 22, 2014, this Court determined that the defendant's right to counsel was adversely affected when his attorney took a position adverse to him on that branch of his motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance under Superior Court Information No. 2799/10. We therefore remitted the matter to the County Court, Suffolk County, for the appointment of new counsel and for a new determination of that branch of the motion thereafter (see People v. Duart, 113 A.D.3d 788, 978 N.Y.S.2d 369 ). The County Court now reports that it appointed new counsel for the defendant, considered that branch of the defendant's motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance under Superior Court Information No. 2799/10, and denied that branch of the motion.

The County Court providently exercised its discretion in denying that branch of the defendant's motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance under Superior Court Information No. 2799/10. A motion to withdraw a plea of guilty is addressed to the sound discretion of the County Court, and its determination generally will not be disturbed absent an improvident exercise of discretion (see CPL 220.60 [3 ]; People v. Alexander, 97 N.Y.2d 482, 483–484, 743 N.Y.S.2d 45, 769 N.E.2d 802 ; People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627 ; People v. Villalobos, 71 A.D.3d 924, 895 N.Y.S.2d 867 ; People v. Hines, 70 A.D.3d 969, 893 N.Y.S.2d 884 ). “Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors ‘including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused’ ” (People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311, quoting People v. Hidalgo, 91 N.Y.2d 733, 736, 675 N.Y.S.2d 327, 698 N.E.2d 46 ). Here, the defendant, who had the assistance of an attorney, and who had a lengthy criminal history, knowingly and voluntarily admitted his guilt after a thorough and complete plea allocution. The defendant acknowledged that he had enough time to discuss this matter with his attorney before pleading guilty. The defendant indicated that no one had threatened, forced, or pressured him to enter the plea of guilty and that ...