People v. Johnson

• Decision Date: 11 July 2012
• Parties: The PEOPLE, etc., respondent, v. Lee S. JOHNSON, Jr., appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 695
948 N.Y.S.2d 120
2012 N.Y. Slip Op. 05547

The PEOPLE, etc., respondent,
v.
Lee S. JOHNSON, Jr., appellant.

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

July 11, 2012.

[948 N.Y.S.2d 121]

Marianne Karas, Thornwood, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Richard Longworth Hecht of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

[97 A.D.3d 695]Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered February 17, 2011, convicting him of attempted assault in the first degree (two counts), criminal possession of a weapon in the third degree, and menacing in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

“The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the [trial court] and generally will not be disturbed absent an improvident exercise of discretion” ( People v. Caruso, 88 A.D.3d 809, 809, 930 N.Y.S.2d 668;seeCPL 220.60[3]; People v. Seeber, 4 N.Y.3d 780, 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;People v. Dazzo, 92 A.D.3d 796, 796, 938 N.Y.S.2d 446;People v. Amanze, 87 A.D.3d 1159, 1159, 929 N.Y.S.2d 876). “[A] hearing will be granted only in rare instances” ( People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782;see People v. Dazzo, 92 A.D.3d at 796, 938 N.Y.S.2d 446;People v. Perez, 83 A.D.3d 738, 739, 919 N.Y.S.2d 887).

Here, the record supports the County Court's determination denying, without a hearing, the defendant's application to withdraw his plea of guilty, as his plea was entered knowingly, voluntarily, and intelligently ( see People v. Dazzo, 92 A.D.3d at 796–797, 938 N.Y.S.2d 446;People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668;People v. Jackson, 87 A.D.3d 552, 553, 928 N.Y.S.2d 58;People v. Perez, 83 A.D.3d 738, 919 N.Y.S.2d 887). The defendant's allegation that his attorney coerced him to plead guilty is belied by his statements under oath acknowledging that he was voluntarily pleading guilty and that no one made any threats or forced him to enter his plea ( see

[948 N.Y.S.2d 122]

People v. Dazzo, 92 A.D.3d at 796–797, 938 N.Y.S.2d 446;People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668;People v. Wiedmer, 71 A.D.3d 1067, 1067, 896 N.Y.S.2d 686). Moreover, the defendant acknowledged that he was satisfied with the representation he had received from his attorney, who negotiated a favorable plea agreement on his behalf ( see People v. Caruso, 88 A.D.3d at 810, 930 N.Y.S.2d 668;People v. Wiedmer, 71 A.D.3d at 1067, 896 N.Y.S.2d 686). Further, the defendant's [97 A.D.3d 696]unsubstantiated allegations that his attorney lied to him prior to his accepting the plea agreement are not supported by the record ( see People v. Duah, 91 A.D.3d 884, 885, 936...