Opinion
2018–14687 Ind. No. 18–00112
09-16-2020
The PEOPLE, etc., Respondent, v. Kennedy A. RICHARDS, Appellant.
Goldberg & Allen, LLP, New York, N.Y. (Jay K. Goldberg of counsel), for appellant. Letitia James, Attorney General, New York, N.Y. (Nikki Kowalski and Jodi A. Danzig of counsel), for respondent.
Goldberg & Allen, LLP, New York, N.Y. (Jay K. Goldberg of counsel), for appellant.
Letitia James, Attorney General, New York, N.Y. (Nikki Kowalski and Jodi A. Danzig of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.) rendered November 9, 2018, convicting him of criminal sale of a controlled substance in the first degree and conspiracy in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The County Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty rests within the sound discretion of the court, and generally the court's determination will not be disturbed absent an improvident exercise of the court's discretion (see CPL 220.60[3] ; People v. Alexander , 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 ; People v. Street , 144 A.D.3d 711, 711–712, 39 N.Y.S.3d 824 ). " ‘Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement’ " ( People v. Boria , 157 A.D.3d 811, 811, 69 N.Y.S.3d 3, quoting People v. Smith , 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ; see People v. Tomlinson , 178 A.D.3d 967, 967, 112 N.Y.S.3d 522 ). " ‘Only in rare instances will a defendant be entitled to an evidentiary hearing upon a motion to withdraw a plea of guilty’ " ( People v. Tomlinson , 178 A.D.3d at 967, 112 N.Y.S.3d 522, quoting People v. Smith , 54 A.D.3d at 880, 863 N.Y.S.2d 818 ; see People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ). Here, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Seeber , 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Boria , 157 A.D.3d at 812, 69 N.Y.S.3d 3 ).
By pleading guilty, the defendant forfeited appellate review of his claim of ineffective assistance of counsel to the extent that the claim does not directly involve the plea negotiating process and sentence (see People v. Petgen , 55 N.Y.2d 529, 535, 450 N.Y.S.2d 299, 435 N.E.2d 669 ; People v. Dunne , 106 A.D.3d 928, 964 N.Y.S.2d 663 ). To the extent that the defendant contends that the ineffective assistance of counsel involved the negotiation of the plea, the record reveals that he received the effective assistance of counsel (see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ; People v. Penaranda , 178 A.D.3d 858, 111 N.Y.S.3d 553 ; People v. Boria , 157 A.D.3d at 812, 69 N.Y.S.3d 3 ).
RIVERA, J.P., LEVENTHAL, HINDS–RADIX and CHRISTOPHER, JJ., concur.