Opinion
425 KA 16–00639
07-31-2019
The PEOPLE of the State of New York, Respondent, v. Brian GERENA, Defendant–Appellant.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, two counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ), defendant contends that County Court erred in denying his motion to withdraw his plea without conducting a hearing and that his plea was not knowingly, intelligently, and voluntarily entered. We reject those contentions.
Addressing first defendant's contention that the court erred in denying the motion without conducting a hearing, we conclude that defendant's contention lacks merit. "Only in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice. The defendant should be afforded [a] reasonable opportunity to present his contentions and the court should be enabled to make an informed determination" ( People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ), and that is what occurred here (see People v. Zimmerman, 100 A.D.3d 1360, 1362, 953 N.Y.S.2d 427 [4th Dept. 2012], lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ; People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; People v. Dozier, 12 A.D.3d 1176, 1176–1177, 785 N.Y.S.2d 249 [4th Dept. 2004] ).
With respect to defendant's contention that the court should have granted his motion to withdraw his plea, it is well settled that " ‘[p]ermission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea’ " ( People v. Leach, 119 A.D.3d 1429, 1430, 989 N.Y.S.2d 761 [4th Dept. 2014], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ), which is lacking here. " ‘The court was presented with a credibility determination when defendant moved to withdraw his plea and advanced his belated claims of innocence and coercion, and it did not abuse its discretion in discrediting those claims’ " ( People v. Colon, 122 A.D.3d 1309, 1310, 995 N.Y.S.2d 429 [4th Dept. 2014], lv denied 25 N.Y.3d 1200, 16 N.Y.S.3d 522, 37 N.E.3d 1165 [2015] ). Indeed, we conclude that defendant's belated claims of innocence, duress, and coercion are unsupported by the record and belied by his statements during the plea colloquy (see People v. Dames, 122 A.D.3d 1336, 1336, 994 N.Y.S.2d 758 [4th Dept. 2014], lv denied 25 N.Y.3d 1162, 15 N.Y.S.3d 294, 36 N.E.3d 97 [2015] ; Dozier, 12 A.D.3d at 1177, 785 N.Y.S.2d 249 ).
To the extent that defendant contends that his plea was not voluntary because it was coerced by defense counsel, that contention is preserved for our review by defendant's motion to withdraw his plea (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Nevertheless, we reject that contention inasmuch as it is belied by the record (see People v. Strasser, 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454 [4th Dept. 2011] ; People v. Toliver, 82 A.D.3d 1581, 1582, 919 N.Y.S.2d 256 [4th Dept. 2011], lv denied 17 N.Y.3d 802, 929 N.Y.S.2d 110, 952 N.E.2d 1105 [2011], reconsideration denied 17 N.Y.3d 862, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ). During the thorough plea colloquy, defendant stated that he was satisfied with the services of defense counsel, that he had enough time to discuss his plea with defense counsel, that no one was forcing him to plead guilty, and that he was pleading guilty voluntarily (see Strasser, 83 A.D.3d at 1411, 919 N.Y.S.2d 454 ; Toliver, 82 A.D.3d at 1582, 919 N.Y.S.2d 256 ). We therefore conclude that "[t]he record establishes that defendant knowingly and intelligently, with neither confusion nor coercion present ..., and with a full opportunity to assess the advantages and disadvantages of a plea versus a trial ..., made his election" ( People v. Johnson, 122 A.D.3d 1324, 1325, 995 N.Y.S.2d 888 [4th Dept. 2014] [internal quotation marks omitted] ). Contrary to defendant's further contention, "the fact that defendant was required to accept or reject the plea offer within a short time period does not amount to coercion" ( People v. Mason, 56 A.D.3d 1201, 1202, 867 N.Y.S.2d 609 [4th Dept. 2008], lv denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446 [2009] [internal quotation marks omitted] ).