People v. Duncan

• Court: New York Supreme Court Appellate Division
• Citation: 912 N.Y.S.2d 283,78 A.D.3d 1193
• Parties: The PEOPLE, etc., respondent, v. De'Quan DUNCAN, appellant.
• Decision Date: 30 November 2010

912 N.Y.S.2d 283
78 A.D.3d 1193

The PEOPLE, etc., respondent,
v.
De'Quan DUNCAN, appellant.

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

Nov. 30, 2010.

912 N.Y.S.2d 284

Gary Greenwald, Chester, N.Y. (David A. Brodsky and David Gove of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio and Richard Longworth Hecht of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, and PLUMMER E. LOTT, JJ.

78 A.D.3d 1193

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler, J.), rendered August 13, 2009, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Prior to sentencing, the defendant moved to withdraw his plea of guilty, asserting that he was innocent and that he was coerced by his attorney to plead guilty. The defendant contends that the Supreme Court erred in denying his motion.

The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the 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. Haffiz, 77 A.D.3d 767, 909 N.Y.S.2d 490; People v. Villalobos, 71 A.D.3d 924, 895 N.Y.S.2d 867; People v. Pooler, 58 A.D.3d 757, 871 N.Y.S.2d 707). The defendant's contention that certain statements he made to law enforcement officials cast doubt upon his guilt and rendered his plea factually insufficient is unpreserved for appellate review because he did not raise this contention in his motion to withdraw his plea of guilty ( see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668; People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Villalobos, 71 A.D.3d at 924, 895 N.Y.S.2d 867). In any event, the defendant's contentions regarding his innocence and a justification defense are unsupported by the record and do not afford a basis for withdrawal

912 N.Y.S.2d 285

of his 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 v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329; People v. Tinsley, 32 A.D.3d 447, 820 N.Y.S.2d 305). The factual portion of the plea allocution did not negate any essential element of the crime and, thus, the Supreme Court was under no duty...