People v. Parizo

• Decision Date: 03 November 1980
• Citation: 432 N.Y.S.2d 627,78 A.D.2d 863
• Parties: The PEOPLE, etc., Respondent, v. Gary Lane PARIZO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 627

432 N.Y.S.2d 627

78 A.D.2d 863

The PEOPLE, etc., Respondent, v. Gary Lane PARIZO, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 3, 1980.

Samuel Collins, Poughkeepsie (Marshall L. Brenner, Poughkeepsie, of counsel), for appellant.

John R. King, Dist. Atty., Poughkeepsie (Bridget R. Rahilly, Asst. Dist. Atty., Poughkeepsie, of counsel), for respondent.

Before HOPKINS, J. P., and GULOTTA, MARGETT and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Dutchess County rendered April 12, 1979, convicting him of coercion in the first degree, upon his plea of guilty, and imposing sentence.

Case remitted to the County Court, Dutchess County, to hear and report on defendant's application to withdraw his guilty plea, and appeal held in abeyance in the interim. The County Court shall file its report with all convenient speed.

By motion made approximately two weeks after he pleaded guilty, defendant moved to withdraw his plea contending inter alia, that he was innocent and that his plea had been involuntarily made because he was under the influence of medication during the plea proceedings. He requested an evidentiary hearing on his motion. Defendant's counsel, who had advised the court by letter that defendant was dissatisfied with his services and wished the Public Defender to be appointed in his stead, submitted nothing in support of the merits of defendant's motion. In his affirmation, defense counsel stated, in essence, that he had been representing defendant as a "charity case", without compensation, and requested that the Public Defender be assigned to represent defendant if his motion to withdraw his plea were granted since counsel could not bear the expense of representing defendant at trial without compensation. The People submitted papers in opposition to the motion. The County Court denied defendant's motion, apparently without hearing argument, but assigned the Public Defender to represent defendant in subsequent proceedings. Thereafter, defendant, represented by the Public Defender, sought to renew his motion on the additional ground that his former counsel's representation had been constitutionally inadequate. Defendant's affidavit in support of the motion to renew contained an allegation that he had been misled to believe that his former counsel was an experienced criminal lawyer when, upon information and belief, he had never tried a criminal case before representing defendant. Leave to renew was granted and upon renewal, the court adhered to its original determination, without oral argument.

The County Court did not abuse its discretion in determining on the basis of the plea minutes, jail records, medication chart and its own observation of defendant during the plea proceedings that defendant's claim that his plea was involuntary because of the effect of medication upon him was without merit. Moreover, it was not an abuse of discretion to deny, without a hearing, defendant's claim that he had entered his plea because his former attorney had misled him concerning the sentence that would be imposed. The plea minutes reveal that, before it accepted defendant's plea, the court fully advised him of the possible range of his sentence and that defendant acknowledged that no one had made any promise to him with respect to the sentence. However, defendant's motion raised other relevant factual issues which could not be adequately resolved on the papers alone. From our reading of defendant's pro se affidavits in...