Opinion
2018–03410 Ind. No. 206/15
10-16-2019
The PEOPLE, etc., Respondent, v. Jesus MATOS, Appellant.
David Zucker, Kew Gardens, NY, for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Katherine A. Triffon of counsel), for respondent.
David Zucker, Kew Gardens, NY, for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Katherine A. Triffon of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER 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 and generally will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3] ; People v. Caruso , 88 A.D.3d 809, 809, 930 N.Y.S.2d 668 ). Such a motion "must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" ( People v. De Jesus , 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ). "Only in rare instances will a defendant be entitled to an evidentiary hearing upon a motion to withdraw a plea of guilty" ( People v. Smith , 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ; see CPL 220.60[3] ; People v. Caruso , 88 A.D.3d at 809, 930 N.Y.S.2d 668 ). Here, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Boria , 157 A.D.3d 811, 812, 69 N.Y.S.3d 3 ). Defense counsel's representation to the Supreme Court that a private investigator had spoken to unnamed witnesses who allegedly recanted their statements regarding the underlying incident was insufficient, alone, to justify withdrawal of the plea (see People v. Caruso , 88 A.D.3d at 809, 930 N.Y.S.2d 668 ). Accordingly, the court providently exercised its discretion in denying, without holding an evidentiary hearing, the defendant's motion to withdraw his plea.
The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the hearing court's suppression determination (see People v. Moore , 140 A.D.3d 1091, 1091, 34 N.Y.S.3d 147 ; People v. Walsh , 136 A.D.3d 629, 23 N.Y.S.3d 904 ). By pleading guilty, the defendant forfeited review of his argument that the Supreme Court erred in restricting his access to certain discovery information (see People v. Pryor , 12 A.D.3d 695, 784 N.Y.S.2d 896 ; People v. Gerber , 182 A.D.2d 252, 260, 589 N.Y.S.2d 171 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel. The defendant's assertion that defense counsel forced him to plead guilty is belied by his statements under oath on the record acknowledging that his plea had not been coerced and that the plea was being entered of his own free will (see People v. Caruso , 88 A.D.3d at 810, 930 N.Y.S.2d 668 ). Moreover, "[t]he defendant received an advantageous plea, and there is nothing in the record which casts doubt on the apparent effectiveness of counsel" ( id. at 810, 930 N.Y.S.2d 668 ).
The defendant's remaining contentions are without merit.
DILLON, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.