People v. Rojas
| Decision Date | 17 April 1997 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Aurelio ROJAS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Richard Rivera, Albany, for appellant.
James E. Conboy, District Attorney (Geoffrey E. Major, of counsel), Fonda, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.
Appeal from a judgment of the County Court of Montgomery County (Aison, J.), rendered February 22, 1995, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.
Defendant was indicted for criminal possession of a controlled substance in the first degree, criminally using drug paraphernalia in the second degree, criminal possession of a weapon in the third degree and a number of other counts as the result of an October 8, 1993 incident when cocaine, a scale and a weapon were found in the vehicle in which he was traveling on the Thruway. On October 7, 1994, defendant disposed of the indictment with a counseled plea of guilty to a reduced charge of criminal possession of a controlled substance in the second degree. The plea was given and accepted as part of a plea bargain that provided for defendant's waiver of his right to appeal but ensured that his sentence would not exceed a $5,000 fine and a prison term of four years to life so long as he personally appeared for sentencing and committed no additional crimes prior to that time.
At a December 28, 1994 appearance in County Court, defendant indicated that he intended to move to withdraw his plea of guilty. Defendant was advised to make the motion in writing, returnable January 10, 1995. As of that date, no motion papers had been filed with County Court. The parties appeared the following day and defendant's counsel explained that the motion papers had been prepared but defendant was unwilling to sign them because he did not want to withdraw his guilty plea. At the same time, defendant wanted his counsel to pursue what he believed to be a meritorious statutory speedy trial claim. First defendant's counsel and then County Court advised defendant of the fact that, absent successful withdrawal of his guilty plea, he could not pursue a CPL 30.30 motion. In addition, defendant was advised that if he was successful in his effort to withdraw his guilty plea but the ensuing CPL 30.30 motion was denied, there could be no assurance that the plea bargain would still be available. Simply stated, it was made patently clear to defendant that he was required to make an election.
The parties next appeared in County Court on January 13, 1995 and defendant continued in his effort to pursue the statutory speedy trial issue orally and in the absence of any written motion to withdraw his guilty plea. In the course of his recitation, defendant challenged the ability and honesty of his counsel to the point where the latter sought to be relieved of assignment. County Court granted the motion. Defendant then appeared on February 22, 1995 with new assigned counsel. After asking a number of questions of County Court and the District Attorney concerning the dates of certain prior appearances and proceedings, defendant indicated...
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