People v. Najera, 2017–11051

• Court: New York Supreme Court Appellate Division
• Citation: 94 N.Y.S.3d 175,170 A.D.3d 753
• Docket Number: 2017–11051,Ind.No. 16–00331
• Parties: The PEOPLE, etc., Respondent, v. Eduardo NAJERA, Appellant.
• Decision Date: 06 March 2019

170 A.D.3d 753
94 N.Y.S.3d 175

The PEOPLE, etc., Respondent,
v.
Eduardo NAJERA, Appellant.

2017–11051
Ind.No. 16–00331

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

Submitted—October 25, 2018
March 6, 2019

Mark Diamond, New York, NY, for appellant.

Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Amanda M. Doty of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

170 A.D.3d 753

ORDERED that the judgment is affirmed.

94 N.Y.S.3d 177

The defendant was charged by indictment with predatory sexual assault against a child, rape in the first degree, attempted

170 A.D.3d 754

rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child. The defendant entered a plea of guilty to rape in the first degree. As part of the plea agreement, the defendant orally waived his right to appeal and executed a written waiver of the right to appeal. Subsequently, the defendant's motion for the assignment of new counsel was granted, and thereafter, the defendant moved to withdraw his plea of guilty. After the defendant's motion was denied, the County Court sentenced the defendant in accordance with the plea agreement.

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 (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. Caruso , 88 A.D.3d 809, 930 N.Y.S.2d 668 ; People v. Duncan , 78 A.D.3d 1193, 912 N.Y.S.2d 283 ). "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. Howard , 109 A.D.3d 487, 970 N.Y.S.2d 86 ; People v. Dazzo , 92 A.D.3d 796, 938 N.Y.S.2d 446 ).

Here, the record supports the County Court's determination denying, without a hearing, the defendant's motion to withdraw his plea of guilty, as his plea was entered knowingly, voluntarily, and intelligently (see People v. Johnson , 97 A.D.3d 695, 948 N.Y.S.2d 120 ; 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 ). The defendant's postplea statements of innocence were unsubstantiated, conclusory, and belied by the plea proceeding, during which he acknowledged under oath that he was satisfied with his counsel's representation, that he had not been coerced into pleading guilty, and that he was entering the plea freely and voluntarily (see People v. Howard , 109 A.D.3d at 488, 970 N.Y.S.2d 86 ; People v. Perez , 51 A.D.3d 1043, 861 N.Y.S.2d 63 ; People v. Gedin , 46 A.D.3d 701, 847 N.Y.S.2d 231 ), and by the statements he made to the police (see People v. Innocent , 132 A.D.3d 696, 697, 17 N.Y.S.3d 505 ; People v. Perez , 83 A.D.3d 738, 739, 919 N.Y.S.2d 887 ; People v. Oquendo , 17 A.D.3d 701, 792 N.Y.S.2d 918 ; cf. People v. Haddock , 79 A.D.3d 1148, 1149, 917 N.Y.S.2d 634 ).

The defendant's contention that his plea of guilty was involuntary because the County Court did not advise...