People v. Greene

• Decision Date: 31 October 1994
• Citation: 208 A.D.2d 950,618 N.Y.S.2d 412
• Parties: The PEOPLE, etc., Respondent, v. Edward J. GREENE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 412

618 N.Y.S.2d 412

208 A.D.2d 950

The PEOPLE, etc., Respondent, v.Edward J. GREENE, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 31, 1994.

Kindlon and Shanks, P.C., Albany (Terence L. Kindlon, of counsel), for appellant.

William V. Grady, Dist. Atty., Poughkeepsie (Bridget Rahilly Steller, of counsel), for respondent.

Before O'BRIEN, J.P., and PIZZUTO, ALTMAN and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Dutchess County(Marlow, J.), rendered May 3, 1993, convicting him of criminal possession of marihuana in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty and withdrew that branch of his omnibus motion which was to suppress evidence prior to a hearing and decision on the motion.Before sentencing, the defendant moved to vacate his plea on the ground that a decision issued by the Court of Appeals after his plea (People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 593 N.E.2d 1328) established that the search of his property by the police was improper.

The court did not err in refusing to vacate the defendant's plea.The record reveals that the plea was knowingly, voluntarily, and intelligently entered (see, People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170), and the defendant, in seeking vacatur, did not raise any claim of innocence, fraud, mistake, or involuntariness (see, e.g., People v. De Jesus, 199 A.D.2d 529, 606 N.Y.S.2d 255;People v. Cance, 155 A.D.2d 764, 547 N.Y.S.2d 702).Moreover, the pleadings reveal that there are factual issues as to whether People v. Scott(supra), would require the suppression of evidence in this case.Any misapprehension by the defendant as to the quality of the People's case and his chance of prevailing on his suppression motion is not a sufficient ground to vacate his plea (see, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747;People v. Jones, 44 N.Y.2d 76, 404 N.Y.S.2d 85, 375 N.E.2d 41, cert. denied, 439 U.S. 846, 99 S.Ct. 145, 58 L.Ed.2d 148;People v. Hernandez, 190 A.D.2d 752, 593 N.Y.S.2d 335;People v. Wright, 182 A.D.2d 849, 582 N.Y.S.2d 802).

Since the defendant withdrew his suppression motion prior to pleading guilty, appellate review of the merits of that motion is precluded (see, People v. Fernandez, 67 N.Y.2d 686, 499 N.Y.S.2d 919, 490 N.E.2d 838;People v. Clark, 197 A.D.2d 531, 604 N.Y.S.2d...