People v. Gordon

• Decision Date: 05 June 2013
• Citation: 2013 N.Y. Slip Op. 04026,107 A.D.3d 739,966 N.Y.S.2d 214
• Parties: The PEOPLE, etc., respondent, v. Kimarlie GORDON, appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 739

966 N.Y.S.2d 214

2013 N.Y. Slip Op. 04026

The PEOPLE, etc., respondent,

v.Kimarlie GORDON, appellant.

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

June 5, 2013.

Arza Feldman, Uniondale, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Steven Bender, and Richard Longworth Hecht of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered January 25, 2011, convicting him of attempted robbery in the first degree, upon his plea of guilty (Holdman, J.), and imposing sentence. The appeal brings up for review the denial (Holdman, J.), without a hearing, of the defendant's motion to withdraw his plea of guilty.

ORDERED that the judgment is affirmed.

The County 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 County Court, and its determination generally will not be disturbed absent an improvident exercise of discretion ( seeCPL 220.60[3]; People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Dazzo, 92 A.D.3d 796, 938 N.Y.S.2d 446;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). The record supports the County 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 contention that he did not understand the proceeding against him because he was on medication is belied by the transcript of the plea proceeding, which reveals, through a colloquy between the defendant and the court, that the defendant did not lack the capacity to understand the proceeding against him or to assist in his own defense, and which shows that he answered all of the court's questions appropriately, allocuted to the crime, and expressly acknowledged that he understood what he was doing and that he was pleading guilty because he was in fact guilty ( see People v. Keiser, 100 A.D.3d 927, 954 N.Y.S.2d 184;People v. Ramos, 77 A.D.3d 773, 774, 909 N.Y.S.2d 484;People v. M'Lady, 59 A.D.3d 568, 873 N.Y.S.2d 331;People v. Martinez, 33 A.D.3d 631, 821 N.Y.S.2d 660). The record also belies the defendant's postplea claim that he was “tricked” by the Judge into pleading guilty ( see People v. Andrade,...