Opinion
2019–10458 S.C.I. No. 772/18
04-21-2021
The PEOPLE, etc., respondent, v. Joseph PRUNESTI, appellant.
Portale Randazzo LLP, White Plains, N.Y. (Richard A. Portale of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, N.Y. (Steven A. Bender and William C. Milaccio of counsel), for respondent.
Portale Randazzo LLP, White Plains, N.Y. (Richard A. Portale of counsel), for appellant.
Miriam E. Rocah, District Attorney, White Plains, N.Y. (Steven A. Bender and William C. Milaccio of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), rendered July 16, 2019, convicting him of criminal possession of a controlled substance in the fourth degree and unlawful surveillance in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court improvidently exercised its discretion in denying his motion to withdraw his plea of guilty to the crime of unlawful surveillance in the second degree.
"[I]n order to be valid and enforceable, a guilty plea must be entered voluntarily, knowingly and intelligently" ( People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ). CPL 220.60(3) provides that, after a defendant pleads guilty, "[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty ... to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored." "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 People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 ). In general, "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 ; see People v. Nettles, 30 N.Y.2d 841, 841–842, 335 N.Y.S.2d 83, 286 N.E.2d 467 ; People v. Englese, 7 N.Y.2d 83, 87, 195 N.Y.S.2d 641, 163 N.E.2d 869 ; People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490, affd 19 N.Y.3d 883, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ). "The nature and extent of the fact-finding procedures prerequisite to the disposition of such motions rest largely in the discretion of the Judge to whom the motion is made" ( People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ).
The defendant's postplea claims of innocence, made approximately five months after he freely admitted his guilt to the crime of unlawful surveillance in the second degree, were conclusory and unsubstantiated, and were insufficient to warrant vacatur of his plea (see People v. Fisher, 28 N.Y.3d 717, 722–724, 49 N.Y.S.3d 344, 71 N.E.3d 932 ; People v. Alexander, 97 N.Y.2d at 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 ; People v. Caccavale, 152 A.D.3d 537, 537–538, 58 N.Y.S.3d 135 ; cf. People v. McIntyre, 40 A.D.2d 1038, 1038, 338 N.Y.S.2d 1011 ). Nothing that the defendant said or failed to say in his allocution negated any element of the offense or otherwise called into question his admitted guilt or the voluntariness of his plea (see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ).
Accordingly, the defendant's motion to withdraw his guilty plea to unlawful surveillance in the second degree was properly denied.
RIVERA, J.P., HINDS–RADIX, CONNOLLY and IANNACCI, JJ., concur.