People v. Ross

• Decision Date: 30 April 1992
• Citation: 182 A.D.2d 1022,583 N.Y.S.2d 34
• Parties: The PEOPLE of the State of New York, Respondent, v. Stephen C. ROSS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 34

583 N.Y.S.2d 34

182 A.D.2d 1022

The PEOPLE of the State of New York, Respondent, v. Stephen C. ROSS, Appellant.

Supreme Court, Appellate Division, Third Department.

April 30, 1992.

Van Zwisohn, Saratoga Springs, for appellant.

Gary C. Hobbs, Glens Falls, for respondent.

Before WEISS, P.J., and YESAWICH, MAHONEY, CASEY and HARVEY, JJ.

WEISS, Presiding Justice.

Appeals (1) from a judgment of the County Court of Warren County (Austin, J.), rendered April 11, 1990, convicting defendant upon his plea of guilty of the crimes of assault in the third degree and unlawful imprisonment in the second degree, and (2) by permission, from an order of said court, entered June 5, 1990, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was indicted for sexual abuse in the first degree, attempted sodomy in the first degree and unlawful imprisonment in the second degree arising out of an incident on October 17, 1988 in the City of Glens Falls, Warren County, involving a 14-year-old boy. Two trials ended in mistrials and prior to commencement of trial a third time, defendant was offered a plea bargain pursuant to which he would plead guilty to assault in the third degree and unlawful imprisonment in the second degree, both unrelated class A misdemeanors, in full satisfaction of the charges in the indictment. The plea included a waiver of defendant's right to appeal (see, People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022). On February 21, 1990, defendant entered an Alford plea of guilty (see, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162) with sentencing scheduled for March 19, 1990. County Court conducted a very extensive plea allocution with defendant under oath in which defendant, inter alia, said that he was not under the care of a doctor or psychologist; had never been confirmed for mental or emotional disorder; had never been treated for narcotic or drug addiction; felt in good physical and mental health; had ample time to consult with counsel; and was satisfied with and did consult counsel. A myriad of other questions were asked defendant which were designed to make certain that the plea was knowingly and voluntarily entered into with the full extent of the consequences understood and appreciated. Subsequently at a presentencing conference, when the court indicated that defendant's sentence would include 60 days of imprisonment, counsel stated that defendant wanted to withdraw his guilty plea. Defendant was sentenced and, on May 25, 1990, moved orally to withdraw the plea or alternatively to vacate the conviction. Following submission of papers and oral argument, the motion was denied without an evidentiary hearing. Defendant's subsequent motion to withdraw his guilty plea (see, CPL 220.60) and to vacate the judgment of conviction (see, CPL 440.30, 440.10[1][b], [e] was denied. These appeals ensued.

The People are incorrect in their contention that defendant's waiver of his right to appeal, made part of the plea agreement, mandates dismissal of this appeal. The right to challenge the legality of a sentence or voluntariness of a plea is never waived (People v. Seaberg, supra, 74 N.Y.2d at 10-11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Moissett, 154 A.D.2d 786, 787, 546 N.Y.S.2d 463, aff'd 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Bennett, 152 A.D.2d 886, 887, 543 N.Y.S.2d 771, lv. denied, 74 N.Y.2d 845, 546 N.Y.S.2d 1010, 546 N.E.2d 193).

Turning to the merits, we find no abuse of discretion by County Court in the failure to hold an evidentiary hearing on defendant's motion to withdraw his guilty plea. "The question of whether defendant should be permitted to withdraw his plea rests in the...