People v. Suba

• Decision Date: 04 May 1987
• Citation: 130 A.D.2d 526,515 N.Y.S.2d 106
• Parties: The PEOPLE, etc., Respondent, v. Curtis SUBA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 106

515 N.Y.S.2d 106

130 A.D.2d 526

The PEOPLE, etc., Respondent, v. Curtis SUBA, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 4, 1987.

Marilyn Feuer, Woodmere, for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Douglas Noll, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, RUBIN, KOOPER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Thorp, J.), rendered October 16, 1981, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

In the absence of anything in the record to suggest that the defendant's plea was either improvident or baseless, the sentencing court did not abuse its discretion in denying the defendant's application to withdraw his plea, predicated upon a bare assertion of innocence and having been under personal pressure at the time the plea was entered (see, People v. Tinsley, 35 N.Y.2d 926, 365 N.Y.S.2d 161, 324 N.E.2d 544; People v. Dixon, 29 N.Y.2d 55, 323 N.Y.S.2d 825, 272 N.E.2d 329; People v. Garrett, 43 A.D.2d 503, 352 N.Y.S.2d 713, affd. 36 N.Y.2d 727, 367 N.Y.S.2d 975, 328 N.E.2d 487).

The remaining issues asserted on this appeal, which challenge the sufficiency of the defendant's plea allocution, were not preserved for appellate review because the defendant failed to raise them in his application to withdraw his plea prior to the imposition of sentence (see, People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Bryant, 107 A.D.2d 817, 484 N.Y.S.2d 654). In any event, the defendant's contentions are without merit. During the plea allocution, the defendant testified:

"I was down in money. I had no money. It was late at night and I was drinking. I wanted to get some money somehow. So, I decided to take some. * * * Me and my codefendant [Haynauth Persaud] decided to take it. * * * I was drunk, but I knew what I was doing. I wasn't all that intoxicated. I am used to drinking. I seen a man walking by the bank. So, we walked up behind him and told him, 'This is a stickup,' and he had other thoughts in his mind. He pulled out something. It turned out to be a paint scraper. So, it turned into a fight. And as we was fighting and I stabbed him a few times and--I stabbed him and [Persaud] stabbed him a few times."

In view of the defendant's acknowledgement that he had discussed defenses to the charges of felony murder and robbery with his attorney and his unprompted...