Opinion
1132 KA 19-00511
06-17-2021
The PEOPLE of the State of New York, Respondent, v. Elliott L. RIVERA, Also Known as Little, Defendant-Appellant.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. ELLIOTT L. RIVERA, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
ELLIOTT L. RIVERA, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of kidnapping in the second degree ( Penal Law § 135.20 ). Initially, we note that, even assuming, arguendo, that defendant correctly contends in his main brief that his waiver of the right to appeal is invalid (see People v. Castro-Ubiles , 187 A.D.3d 1598, 1598, 129 N.Y.S.3d 888 [4th Dept. 2020], lv denied 36 N.Y.3d 971, 138 N.Y.S.3d 477, 162 N.E.3d 706 [2020] ), his further contention in his main brief that he was denied effective assistance of counsel survives his plea "only insofar as he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney[’s] allegedly poor performance" ( People v. Miller , 161 A.D.3d 1579, 1580, 76 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] [internal quotation marks omitted]). Here, however, defendant's contention involves matters outside of the record on appeal, including his conversations with his attorney and the content of off-the-record plea negotiations and, thus, it must be raised by way of a motion pursuant to CPL article 440 (see People v. Graham , 171 A.D.3d 1559, 1560, 99 N.Y.S.3d 182 [4th Dept. 2019], lv denied 33 N.Y.3d 1069, 105 N.Y.S.3d 47, 129 N.E.3d 367 [2019] ; People v. Spencer , 170 A.D.3d 1614, 1615, 94 N.Y.S.3d 503 [4th Dept. 2019] ). To the extent that defendant's contention is reviewable on direct appeal, we conclude that it is without merit (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. Kosmetatos , 178 A.D.3d 1433, 1434, 115 N.Y.S.3d 789 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 639, 149 N.E.3d 400 [2020] ). Indeed, defense counsel secured an advantageous plea offer on defendant's behalf, and nothing in the record before us casts doubt on defense counsel's performance (see People v. Goodwin , 159 A.D.3d 1433, 1434-1435, 73 N.Y.S.3d 327 [4th Dept. 2018] ).
We reject defendant's contention in his main brief that Supreme Court abused its discretion in denying his motion to withdraw his guilty plea without conducting an evidentiary hearing or making a further inquiry into his allegations. "When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare instances" ( People v. Brown , 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010] ; see People v. Walker , 114 A.D.3d 1257, 1258, 980 N.Y.S.2d 216 [4th Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014] ). Here, the record establishes that defendant was afforded "a reasonable opportunity to advance his claims, and the court did not abuse its discretion in denying the motion without further inquiry or a hearing" ( People v. Shorter , 179 A.D.3d 1445, 1446, 118 N.Y.S.3d 324 [4th Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 19, 148 N.E.3d 483 [2020] ).
We also reject the contention of defendant in his pro se supplemental brief that the sentence is illegal. The imposition of consecutive sentences is not improper where, as here, the kidnapping of two separate victims constitutes two separate acts that arise from the same set of circumstances (see People v. Brown , 5 A.D.3d 789, 790, 773 N.Y.S.2d 585 [2d Dept. 2004], lv denied 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 [2005] ; see also People v. Chao Wang Lin , 266 A.D.2d 467, 467, 698 N.Y.S.2d 540 [2d Dept. 1999], lv denied 94 N.Y.2d 878, 705 N.Y.S.2d 9, 726 N.E.2d 486 [2000] ).
Finally, we have reviewed the remaining contention raised in defendant's main brief and conclude that it does not warrant modification or reversal of the judgment.