People v. Kazimer

• Citation: 210 A.D.3d 1109,178 N.Y.S.3d 780
• Decision Date: 30 November 2022
• Docket Number: 2019–13008,Ind. No. 46/18
• Parties: The PEOPLE, etc., respondent, v. Michael J. KAZIMER, appellant.
• Court: New York Supreme Court Appellate Division

210 A.D.3d 1109

178 N.Y.S.3d 780

The PEOPLE, etc., respondent,

v.Michael J. KAZIMER, appellant.

2019–13008

Ind. No. 46/18

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

Submitted—October 31, 2022

November 30, 2022

Gary E. Eisenberg, New City, NY, for appellant.

William V. Grady, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered October 31, 2019, convicting him of criminal contempt in the first degree and criminal contempt in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant entered a plea of guilty to criminal contempt in the first degree and criminal contempt in the second degree. Prior to sentencing, he moved to withdraw his plea of guilty. The County Court denied the motion without a hearing and imposed sentence. The defendant appeals.

"The decision 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" ( People v. Jamison, 197 A.D.3d 569, 570, 151 N.Y.S.3d 694 [internal quotation marks omitted]; see CPL 220.60[3] ; People v. Torres, 192 A.D.3d 831, 832, 143 N.Y.S.3d 102 ). "In general, ‘such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea’ " ( People v. Hollmond, 191 A.D.3d 120, 136, 135 N.Y.S.3d 449, quoting People v. De Jesus, 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ). "When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and 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, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; see People v. Hollman, 197 A.D.3d 484, 484, 151 N.Y.S.3d 158 ).

Here, the County Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. Reviewing the record as a whole and the circumstances surrounding the entry of the plea (see People v. Sougou, 26 N.Y.3d 1052, 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ), we conclude that the defendant's plea of guilty was knowingly, voluntarily, and intelligently made (see People v. Hollman, 197 A.D.3d at 484–485, 151 N.Y.S.3d 158 ; People v. Duart, 144 A.D.3d 1173, 1175, 41 N.Y.S.3d 747 ). The defendant's assertions in support of his motion to withdraw his plea of guilty were unsubstantiated and contradicted by the record of the plea proceeding (see People v. Haffiz, 19 N.Y.3d 883, 884, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; People v. Turner, 195 A.D.3d 953, 954, 146 N.Y.S.3d 510 ; People v. Abreu, 184 A.D.3d 656, 656, 123 N.Y.S.3d 845 ).

The County Court properly determined that the defendant violated certain conditions of his interim probation and properly imposed the alternative sentence of a term of imprisonment. A sentencing court faced with an allegation that a defendant violated a condition of a plea agreement must conduct an inquiry sufficient to satisfy itself that there is a legitimate basis for such a finding (see People v. Fiammegta, 14 N.Y.3d 90, 98, 896 N.Y.S.2d 735, 923 N.E.2d 1123 ; People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; People v. Mays, 181 A.D.3d 874, 875, 119 N.Y.S.3d 883 ). Contrary to the defendant's contention, the court's determination that he violated the conditions of his interim probation was supported by sufficient reliable and accurate information (see People v. Mays, 181 A.D.3d at 875, 119 N.Y.S.3d 883 ; People v. Rollins, 50 A.D.3d 1535,...