People v. Johnson

• Decision Date: 27 March 2019
• Docket Number: Ind. No. 15–01021,2016–12877
• Citation: 170 A.D.3d 1195,94 N.Y.S.3d 876 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Carless JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1195

94 N.Y.S.3d 876 (Mem)

The PEOPLE, etc., Respondent,

v.Carless JOHNSON, Appellant.

2016–12877

Ind. No. 15–01021

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

Submitted - November 13, 2018

March 27, 2019

Jason M. Bernheimer, Katonah, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Jennifer Spencer of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

"The decision to permit a defendant to withdraw a previously entered plea of guilty, as well as the nature and extent of the fact-finding inquiry, rests largely within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" ( People v. Jemmott, 125 A.D.3d 1005, 1006, 5 N.Y.S.3d 447 ; see CPL 220.60[3] ; People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ). A hearing will be granted only in rare instances where "the record raises a legitimate question as to the voluntariness of the plea" ( People v. Brown, 14 N.Y.3d at 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ).

Here, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797 ). Further, the defendant's unsubstantiated postplea statements of innocence to a probation officer, which appear in the presentence investigation report, were contradicted by the defendant's admissions made under oath at his plea allocution and, thus, did not warrant withdrawal of the defendant's plea or a hearing (see People v. Caccavale, 152 A.D.3d 537, 537–538, 58 N.Y.S.3d 135 ; People v. Rodriguez, 142 A.D.3d 1189, 1190, 38 N.Y.S.3d 224 ; People v. Pantojas, 182 A.D.2d 782, 582 N.Y.S.2d 777 ). The defendant's challenge to the voluntariness of his plea of guilty on the ground that he was coerced by his former counsel to plead guilty is unpreserved for appellate review because his motion to withdraw his plea was not made on this ground (see CPL 470.05[2] ; People v. Telfair, 144 A.D.3d 712, 39 N.Y.S.3d 831 ; People v. Ovalle, 112 A.D.3d 971, 972, 977 N.Y.S.2d 401 ). In any event, the defendant's claim is belied by his statements under oath acknowledging that he was voluntarily pleading guilty, that he was satisfied with his attorney's representation, and that he was not forced or threatened into...