| People v Dickerson |
| 2009 NY Slip Op 06928 [66 AD3d 1371] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JonathonDickerson, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedMay 18, 2006. The judgment convicted defendant, upon his plea of guilty, of assault in the firstdegree.
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 assault in the first degree (Penal Law § 120.10 [1]). We conclude that County Court didnot abuse its discretion in denying the motion of defendant to withdraw his guilty plea withoutconducting a hearing. "The decision whether to permit a defendant to withdraw a plea restswithin the sound discretion of the trial court and only in rare instances will a hearing be granted"(People v Yell, 250 AD2d 869, 869 [1998], lv denied 92 NY2d 863 [1998]). Wefurther conclude that the court did not err in failing to assign new counsel to represent defendantin connection with the motion to withdraw the plea. Contrary to defendant's contention, there isno evidence in the record that defense counsel took a position that was adverse to that ofdefendant on the motion (see People vBarnello, 56 AD3d 1214 [2008], lv denied 12 NY3d 780 [2009]), nor is thereany evidence that defense counsel became a witness against him (see People v Caple,279 AD2d 635, 636 [2001], lv denied 96 NY2d 798 [2001]).
Defendant further contends that the court erred in refusing to suppress the victim'sidentification of him from a photo array because the victim was shown a prior photo arrayseveral months earlier that also contained defendant's photograph. We reject that contention."Multiple photo identification procedures are not inherently suggestive" (People vChapman, 161 AD2d 1156 [1990], lv denied 76 NY2d 854 [1990]). Here, theidentification was not rendered unduly suggestive merely because the witness was shown morethan one photo array and defendant's photograph was the only photograph shown in both photoarrays. The record establishes that different photographs of defendant were used (see People v Dunlap, 9 AD3d434, 435 [2004], lv denied 3 NY3d 739 [2004]; People v Brennan, 261AD2d 914 [1999], lv denied 94 NY2d 820 [1999]), the photographs of defendantappeared in a different location in each photo array (see Dunlap, 9 AD3d at 435), andthere was a significant lapse of time between the presentations of the photo arrays (seePeople v Quinones, 228 AD2d 796 [1996]).
Finally, the challenge by defendant to the sufficiency of the evidence before the grand jury isforfeited by his guilty plea (see Peoplev Edwards, 55 AD3d 1337, 1338 [2008], lv denied 11 NY3d [*2]924 [2009]; People v Ware, 34 AD3d 860 [2006], lv denied 8 NY3d951 [2007]). Present—Martoche, J.P., Smith, Peradotto, Carni and Green, JJ.