People v. Yoo

• Citation: 208 A.D.3d 1257,174 N.Y.S.3d 274 (Mem)
• Decision Date: 21 September 2022
• Docket Number: 2019–03018, 2020–08011,S.C.I. No. 2287/17
• Parties: The PEOPLE, etc., respondent, v. Pil–Yong YOO, appellant.
• Court: New York Supreme Court Appellate Division

208 A.D.3d 1257

174 N.Y.S.3d 274 (Mem)

The PEOPLE, etc., respondent,

v.Pil–Yong YOO, appellant.

2019–03018, 2020–08011

S.C.I. No. 2287/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 20, 2022

September 21, 2022

Law Offices of Thomas F. Liotti, LLC, Garden City, NY, for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Rosalind C. Gray and Marion Tang of counsel), for respondent.

BETSY BARROS, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeals by the defendant (1) from a judgment of the County Court, Suffolk County (Martin Efman, J.), rendered March 14, 2018, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence, and (2), by permission, from an order of the same court (Anthony S. Senft, Jr., J.) dated April 30, 2020, which denied, without a hearing, the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction and pursuant to CPL 440.20 to set aside the sentence.

ORDERED that the judgment and the order are affirmed.

On November 16, 2017, the defendant entered a plea of guilty to criminal possession of a weapon in the third degree ( Penal Law § 265.02[7] ), and on March 14, 2018, he was sentenced. The defendant appeals from the judgment. Thereafter, the defendant moved pursuant to CPL 440.10 to vacate the judgment and pursuant to CPL 440.20 to set aside the sentence. In an order dated April 30, 2020, the County Court denied the motion. This Court granted the defendant leave to appeal from the order, and subsequently consolidated the appeals from the judgment and the order.

By pleading guilty, the defendant forfeited review of any claim of ineffective assistance of counsel that did not directly involve counsel's performance with respect to the plea negotiation and sentence (see People v. Rodriquez, 194 A.D.3d 1078, 1078, 144 N.Y.S.3d 611 ; People v. Bhuiyan, 181 A.D.3d 699, 700–701, 120 N.Y.S.3d 400 ). The defendant's claim of ineffective assistance of counsel with respect to the plea negotiation and sentence is refuted by the record of the plea proceeding, in which he acknowledged that he had been afforded sufficient time to consult with his attorney and was satisfied with his attorney's representation, that he had not been forced into entering a plea of guilty, and that he was entering into the plea freely and voluntarily (see People v. Rodriquez, 194 A.D.3d at 1079, 144 N.Y.S.3d 611 ; People v. Johnson, 186 A.D.3d 743, 744, 127 N.Y.S.3d 292 ). "The mere fact that defense counsel may have advised the defendant as to the risks of trial," including the possibility of a higher sentence "if he were to be convicted, is insufficient to establish coercion" ( People v. Bush, 132 A.D.3d 691, 691–692, 17 N.Y.S.3d 497 ; cf. People v. Oquendo, 155 A.D.3d 894, 896, 63 N.Y.S.3d 734 ).

The defendant, alleging that his conviction was procured by prosecutorial and police misconduct or by negligence, failed to "state the sources of such information and the grounds of such belief" as required by statute ( CPL 440.30[1] ). The defendant similarly failed to come forward with more than "conclusory allegations of ultimate facts" ( People v. Waymon, 65 A.D.3d 708, 709, 883 N.Y.S.2d 911 ; see People v. Clemmons, 177 A.D.3d 899, 900, 110 N.Y.S.3d 572 ). Under these circumstances, the "allegations of prosecutorial misconduct were speculative," and the County Court providently exercised its discretion in denying, without a hearing, that branch of the defendant's motion which was to vacate the judgment of conviction on those grounds ( People v. Roberts, 83 A.D.3d 739, 740, 920 N.Y.S.2d 386 ; see People v. Mazzilli, 125 A.D.2d 602, 603, 509 N.Y.S.2d 656 ; see also CPL 440.30[4][b] ).

"A guilty plea is not invalid solely because the trial court failed to recite a defendant's constitutional rights under ( Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 )" ( People v. Pellegrino, 26 N.Y.3d 1063, 1063, 23 N.Y.S.3d 145, 44 N.E.3d 220 ; see People v. Conceicao, 26 N.Y.3d 375, 379, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Guevara–Lopez, 189 A.D.3d 881, 882, 133 N.Y.S.3d 444 ; People v. Karadag, 181 A.D.3d 620, 620–621, 117 N.Y.S.3d 590 ). The court's "failure to recite all of the Boykin rights does not warrant vacatur of the defendant's guilty plea" where "the record as a whole affirmatively demonstrates that the defendant entered his [or her] plea understandingly and voluntarily" ( People v. Karadag, 181 A.D.3d at 621, 117 N.Y.S.3d 590 ; see...