People v. Santana
| Citation | 574 N.Y.S.2d 593,176 A.D.2d 360 |
| Parties | The PEOPLE, etc., Respondent, v. David SANTANA, Appellant. |
| Decision Date | 30 September 1991 |
| Court | New York Supreme Court Appellate Division |
Philip L. Weinstein, New York City (Pamela Peters, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Tammy Smiley, of counsel, Alyson J. Gill, on the brief), for respondent.
Before KUNZEMAN, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from two judgments of the Supreme Court, Kings County (Marrus, J.), both rendered April 8, 1987, convicting him of sodomy in the first degree (two counts), sexual abuse in the first degree (two counts) and endangering the welfare of a child under Indictment No. 7249/86, and sodomy in the first degree (41 counts), sexual abuse in the first degree (two counts), sodomy in the second degree and endangering the welfare of a child under Indictment No. 751/87, upon his pleas of guilty, and imposing sentences. By decision and order dated December 26, 1989, this court remitted the matter to the Supreme Court, Kings County, to hear and report on the defendant's motion to withdraw his pleas, on which motion the defendant's appellate counsel was directed to represent him, and the appeal was held in abeyance in the interim (People v. Santana, 156 A.D.2d 736, 550 N.Y.S.2d 356). By order dated May 25, 1990, the Supreme Court, Kings County, denied, without a hearing, the defendant's application to withdraw his guilty plea.
ORDERED that Justice Harwood has been substituted for former Justice Brown (see, 22 NYCRR 670.1[c]; and it is further,
ORDERED that the judgments are affirmed.
The determination as to whether to allow a defendant to withdraw a previously entered guilty plea rests within the sound discretion of the sentencing court (CPL 220.60[3]; People v. Frederick, 45 N.Y.2d 520, 524, 410 N.Y.S.2d 555, 382 N.E.2d 1332; People v. Stubbs, 110 A.D.2d 725, 727, 487 N.Y.S.2d 824). Only in rare instances will a defendant be entitled to an evidentiary hearing upon a motion to withdraw a guilty plea (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544; People v. Rodriguez, 150 A.D.2d 812, 813, 542 N.Y.S.2d 234).
The record in the instant case reveals that the defendant knowingly and voluntarily pleaded guilty in the presence of competent counsel after the court had advised him of the consequences of his plea. As a result of this court's decision and order remanding the matter to the Supreme Court, Kings County, for a new determination of the motion to withdraw subsequent to the assignment of new counsel (People v. Santana, 156 A.D.2d 736, 550 N.Y.S.2d 356, supra ), the defendant was afforded ample opportunity to state the basis for his application to withdraw his plea after sentencing and the Supreme Court had his written motion papers before it. Under the circumstances,...
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... ... The defendant's protestations at sentencing that he was innocent, and his unsubstantiated claim that he pleaded guilty because he was "afraid", did not provide a basis for withdrawing his [179 A.D.2d 778] plea (see, People v. Santana, 176 A.D.2d ... 360, 574 N.Y.S.2d 593; People v. Latimer, 176 A.D.2d 350, 574 N.Y.S.2d 586) ... BALLETTA, J.P., and ROSENBLATT, MILLER ... ...
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