People v. Jacob

• Court: New York Supreme Court Appellate Division
• Writing for the Court: DANIEL D. ANGIOLILLO
• Citation: 942 N.Y.S.2d 627,2012 N.Y. Slip Op. 03218,94 A.D.3d 1142
• Decision Date: 24 April 2012
• Parties: The PEOPLE, etc., respondent, v. Anderson JACOB, appellant.

2012 N.Y. Slip Op. 03218
94 A.D.3d 1142
942 N.Y.S.2d 627

The PEOPLE, etc., respondent,
v.
Anderson JACOB, appellant.

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

April 24, 2012.

[942 N.Y.S.2d 628]

Matthew Muraskin, Port Jefferson, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel; Sheila Ballato on the brief), for respondent.

DANIEL D. ANGIOLILLO, J.P., ARIEL E. BELEN, PLUMMER E. LOTT and ROBERT J. MILLER, JJ.

[94 A.D.3d 1142] Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered July 14, 2010, convicting him of burglary in the first degree (three counts), robbery in the first degree, assault in the second degree (three counts), attempted assault in the second degree, and endangering the welfare of a child, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant was charged with, among other things, burglarizing two houses and assaulting their occupants. The defendant moved, inter alia, to suppress identification testimony on the ground that a showup identification procedure was unduly suggestive. After a hearing, that branch of the defendant's omnibus motion was denied.

The defendant subsequently pleaded guilty to the nine counts charged in the grand jury indictment in exchange for a promise that he would not receive a sentence longer than 22 years' imprisonment. At the plea allocution, the defendant waived his right to appeal. Prior to sentencing, the defendant moved to withdraw his plea of guilty. The Supreme Court denied his motion to withdraw his plea without conducting a hearing, and sentenced the defendant in accordance with the plea agreement.

[94 A.D.3d 1143] The decision as to whether 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. Duncan, 78 A.D.3d 1193, 1193, 912 N.Y.S.2d 283; People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490; People v. Villalobos, 71 A.D.3d 924, 895 N.Y.S.2d 867). “Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement” ( People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818; see People v. Haffiz, 77 A.D.3d at 768, 909 N.Y.S.2d 490).

Here, the record demonstrates that the defendant's acceptance of the plea offer was an informed choice, freely made among valid alternatives, and that he entered his plea of guilty knowingly, voluntarily, and intelligently ( see People v. Hale, 93 N.Y.2d 454, 463, 692 N.Y.S.2d 649, 714 N.E.2d 861; People v. Alonzo, 90 A.D.3d 1065, 1065, 934 N.Y.S.2d 831; People v. Duncan, 78 A.D.3d at 1194, 912 N.Y.S.2d 283; People v. Haffiz, 77 A.D.3d at 768, 909 N.Y.S.2d 490). The defendant's assertion that his attorney coerced him into pleading guilty is belied by the record

[942 N.Y.S.2d 629]

( see People v. Duncan, 78 A.D.3d 1193, 912 N.Y.S.2d 283; People v. Haffiz, 77 A.D.3d...