People v. Greer
| Decision Date | 23 December 2020 |
| Docket Number | 1148,KA 18-01571 |
| Citation | 134 N.Y.S.3d 905 (Mem),189 A.D.3d 2142 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Robert GREER, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the second degree ( Penal Law §§ 110.00, 160.10 [2] [b] ). He contends that County Court abused its discretion in denying his motion to withdraw his plea of guilty, which was premised on allegations that he was actually innocent and that defense counsel coerced him into entering the plea. We affirm.
"[P]ermission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea" ( People v. Dale , 142 A.D.3d 1287, 1289, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] [internal quotation marks omitted]; see People v. Davis , 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ). In our view, because defendant did not tender any evidence to support his conclusory assertion of innocence, the court did not abuse its discretion in denying that part of defendant's motion (see People v. Allen , 99 A.D.3d 1252, 1252, 951 N.Y.S.2d 822 [4th Dept. 2012] ; People v. Sparcino , 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; People v. Dozier , 12 A.D.3d 1176, 1177, 785 N.Y.S.2d 249 [4th Dept. 2004] ).
With respect to defendant's claim that defense counsel coerced him into pleading guilty, we conclude here that "[t]he court was presented with a credibility determination when defendant moved to withdraw his plea ..., and it did not abuse its discretion in discrediting [that] claim[ ]" ( Sparcino , 78 A.D.3d at 1509, 911 N.Y.S.2d 523 ; see People v. Zimmerman , 100 A.D.3d 1360, 1361-1362, 953 N.Y.S.2d 427 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ). In our view, "[f]ar from being coercive, defense counsel's advice ... that the case could not be won, and" his realistic explanation of the benefits of accepting the plea offer under the circumstances, merely "fulfilled defense counsel's duty to warn his client of the risks of going to trial" ( People v. Spinks , 227 A.D.2d 310, 310, 643 N.Y.S.2d 54 [1st Dept. 1996], lv denied 88 N.Y.2d 995, 649 N.Y.S.2d 402, 672 N.E.2d 628 [1996] ).
With respect to defendant's contention that, in light of defense counsel's comments about the significantly longer sentence he faced if he proceeded to trial rather than pleading guilty, defendant was left with no choice but to plead guilty, we note that "[d]efendant is not entitled to the plea bargain of his choosing, and defendant's fear that a harsher sentence would be imposed if defendant were convicted after trial does not constitute coercion" ( Zimmerman , 100 A.D.3d at 1362, 953 N.Y.S.2d 427 [internal quotation marks omitted]; see ...
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