People v. Smith

• Decision Date: 02 May 1996
• Citation: 227 A.D.2d 655,641 N.Y.S.2d 905
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael E. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 905

641 N.Y.S.2d 905

227 A.D.2d 655

The PEOPLE of the State of New York, Respondent, v. Michael E. SMITH, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 2, 1996.

Renee Doyle, Albany, for appellant.

Sol Greenberg, District Attorney (John E. Maney, of counsel), Albany, for respondent.

Before CARDONA, P.J., and WHITE, CASEY, PETERS and SPAIN, JJ.

CARDONA, Presiding Judge.

Appeals (1) from a judgment of the County Court of Albany County (Turner Jr., J.), rendered May 20, 1992, convicting defendant upon his plea of guilty of the crime of murder in the second degree, and (2) by permission, from an order of said court, entered December 13, 1994, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On December 10, 1991, defendant was indicted for murder in the second degree (three counts), attempted robbery in the first degree, burglary in the second degree and petit larceny. Following a suppression hearing, but prior to County Court rendering a decision, defendant pleaded guilty to a single count of murder in the second degree in full satisfaction of the indictment and waived his right to appeal. On May 20, 1992, defendant was sentenced to a prison term of 20 years to life in accordance with his negotiated plea bargain. Subsequently, defendant moved pro se, pursuant to CPL 440.10, to vacate the judgment of conviction. County Court denied that motion without a hearing on December 13, 1994. We granted defendant's application for permission to appeal that order. Defendant also appeals from the judgment of conviction.

Defendant first contends that his recitation of the circumstances of the crime negated the essential element of intent (see, Penal Law § 125.25[1]; People v. Serrano, 15 N.Y.2d 304, 308-309, 258 N.Y.S.2d 386, 206 N.E.2d 330) and, therefore, County Court erred by accepting his guilty plea without further inquiry to ensure that it was knowing and voluntaRY (see, PEOPLE V. lopez, 71 n.y.2d 662, 666, 529 n.y.s.2d 465, 525 N.E.2d 5). ¹ We disagree. During allocution, defendant stated that he fought with the victim while attempting to rob him and the victim "wound up getting stabbed in the back". Under further inquiry by the court, defendant admitted that he stabbed the victim with a knife and that it was his intention to cause the victim's death. This inquiry established all the essential elements of murder in the second degree (see, Penal Law § 125.25[1]; see, e.g., People v. Suba, 130 A.D.2d 526, 515 N.Y.S.2d 106; People v. Santana, 110 A.D.2d 789, 488 N.Y.S.2d 408, lv. dismissed 67 N.Y.2d 656, 499 N.Y.S.2d 1053, 490 N.E.2d 570). Defendant's vague postallocution statement, contained in the presentence investigation report, that the victim "ran into the knife", does not, contrary to defendant's contention, cast significant doubt upon defendant's guilt (see, People v. Suba, supra, at 527). Accordingly, that statement does not alter our determination.

Furthermore, we find no merit to defendant's argument that County Court improperly denied his CPL 440.10 motion without a hearing. To overcome the presumption of regularity which attaches to judgments of conviction, defendant was required to come forward with allegations sufficient to demonstrate that the nonrecord facts sought to be established would entitle him to relief (see, People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834; People v. Crippen, 196 A.D.2d 548, 549, 601 N.Y.S.2d 152, lv. denied 82 N.Y.2d 848, 606 N.Y.S.2d 600, 627 N.E.2d 522). Where, as here, that motion can be decided on the record and defendant's submissions, no hearing is required (People v. Satterfield, supra, at 799, 497 N.Y.S.2d 903, 488 N.E.2d 834). Defendant's conclusory claims (see, People v. Brown, 56 N.Y.2d 242, 246, 451 N.Y.S.2d 693, 436 N.E.2d 1295) of duress, fraud and misrepresentation on the part of County Court and counsel are belied by record proof demonstrating that he was fully apprised of the constitutional rights he was waiving, including the right of appeal, and that he knowingly, intelligently and voluntarily entered a counseled plea (see, People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Hicks, 201 A.D.2d 831, 832, 608 N.Y.S.2d 543, lv. denied 83 N.Y.2d 911, 614 N.Y.S.2d 393, 637 N.E.2d 284; see also, People v. Molini, 219 A.D.2d 780, 781, 631 N.Y.S.2d 459, 460). We note defendant's responses indicating that he was not threatened, coerced or forced to plead guilty, that he had an adequate opportunity to consult with his attorney, that he was entering his guilty plea freely and voluntarily because he was in fact guilty and that he was receiving a beneficial sentence. We also note that, in moving to vacate his conviction, defendant never retracted his admissions to the act charged (see, People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646).

We find equally unpersuasive defendant's argument raised in his pro se supplemental brief that his plea was involuntary because he was under the belief that if he went to trial and was found guilty, he would no longer have the right to...