Opinion
03-16-2016
The PEOPLE, etc., respondent, v. Francisco E. AGUILAR, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered November 12, 2013, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
"The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" (People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627 ; see CPL 220.60 [3] ; People v. Alexander, 97 N.Y.2d 482, 483–484, 743 N.Y.S.2d 45, 769 N.E.2d 802 ; People v. Bush, 132 A.D.3d 691, 17 N.Y.S.3d 497 ; People v. Dym, 122 A.D.3d 878, 996 N.Y.S.2d 371 ). "[A] hearing will be granted only in rare instances" (People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782, citing People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; see People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ).
Here, the County Court providently exercised its discretion in denying, without a hearing, the defendant's application to withdraw his plea of guilty, as the record supports the finding that his plea was entered knowingly, voluntarily, and intelligently (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Haffiz, 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; People v. Bediako, 119 A.D.3d 598, 987 N.Y.S.2d 895 ). The defendant's postplea assertion that he had an issue with the imposition of the promised sentence, which he swore under oath at his plea allocution that he understood to be the promised sentence, was not a sufficient basis to warrant withdrawal of his plea or a hearing (see People v. McClurkin, 96 A.D.3d 784, 785, 945 N.Y.S.2d 718 ; People v. Laurent, 58 A.D.3d 754, 872 N.Y.S.2d 161 ; People v. Garcia, 265 A.D.2d 492, 492, 696 N.Y.S.2d 707 ; People v. Santana, 151 A.D.2d 518, 519, 542 N.Y.S.2d 307 ).
CHAMBERS, J.P., AUSTIN, SGROI and DUFFY, JJ., concur.