Opinion
2011-10-11
The PEOPLE, etc., respondent,v.Richard BIVENS, appellant.
Adam Seiden, Mount Vernon, N.Y., for appellant.Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered December 3, 2009, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court (see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Bruno, 73 A.D.3d 941, 900 N.Y.S.2d 447; People v. Pooler, 58 A.D.3d 757, 871 N.Y.S.2d 707; People v. Mann, 32 A.D.3d 865, 821 N.Y.S.2d 616; People v. Kucharczyk, 15 A.D.3d 595, 790 N.Y.S.2d 522), and this determination generally will not be disturbed absent an improvident exercise of discretion (see
People v. Bruno, 73 A.D.3d at 941, 900 N.Y.S.2d 447; People v. Pooler, 58 A.D.3d at 757, 871 N.Y.S.2d 707; People v. DeLeon, 40 A.D.3d 1008, 837 N.Y.S.2d 189). Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying, without a hearing, his pro se motion to vacate his plea of guilty (see People v. Doherty, 134 A.D.2d 513, 521 N.Y.S.2d 397).
The defendant knowingly, voluntarily, and intelligently entered his negotiated plea of guilty with the assistance of competent counsel, in exchange for a favorable sentence promise ( see People v. Bruno, 73 A.D.3d at 941, 900 N.Y.S.2d 447; People v. Pooler, 58 A.D.3d at 757, 871 N.Y.S.2d 707; People v. Cummings, 53 A.D.3d 587, 863 N.Y.S.2d 217). The defendant's unsubstantiated assertions of innocence at the time of sentencing were insufficient to justify granting his motion to withdraw his plea of guilty ( see People v. Bruno, 73 A.D.3d at 941, 900 N.Y.S.2d 447; People v. Cummings, 53 A.D.3d at 587, 863 N.Y.S.2d 217).
To the extent that the defendant's claim that he was deprived of the effective assistance of counsel rests on matter which is dehors the record, it is not reviewable on direct appeal ( see People v. Ramos, 77 A.D.3d 773, 775, 909 N.Y.S.2d 484; People v. Drago, 50 A.D.3d 920, 855 N.Y.S.2d 252). To the extent this claim may be reviewed on the record before us, we find that counsel provided the defendant with meaningful representation ( see People v. Perez,83 A.D.3d 738, 739, 919 N.Y.S.2d 887, lv. denied 17 N.Y.3d 809, 929 N.Y.S.2d 568, 953 N.E.2d 806; People v. Ramos, 77 A.D.3d at 774–775, 909 N.Y.S.2d 484).
DILLON, J.P., BELEN, ROMAN and MILLER, JJ., concur.