| People v Bruno |
| 2010 NY Slip Op 04212 [73 AD3d 941] |
| May 11, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stephen Bruno, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch and Cristin N.Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (LaPera, J.),rendered September 10, 2007, convicting him of robbery in the third degree (four counts), uponhis plea of guilty, and imposing sentence, including a direction that the defendant makerestitution in the sum of $16,715.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the provision of the sentence directing the defendant to make restitution inthe sum of $16,715; as so modified, the judgment is affirmed.
The defendant's contention that he was deprived of his statutory right to a speedy trialpursuant to CPL 30.30 was forfeited by his plea of guilty (see People v O'Brien, 56NY2d 1009, 1010 [1982]; People vPerez, 51 AD3d 824 [2008]; People v Mosley, 50 AD3d 1161 [2008]; People v Holmes,303 AD2d 690, 691 [2003]).
The decision to permit a defendant to withdraw a previously entered plea of guilty restswithin the sound discretion of the court (see People v Seeber, 4 NY3d 780 [2005]; People v Pooler, 58 AD3d 757[2009]; People v Ford, 44 AD3d1070, 1070 [2007]; People vMann, 32 AD3d 865 [2006]; People v Kucharczyk, 15 AD3d 595 [2005]), and thisdetermination generally will not be disturbed absent an improvident exercise of discretion(see People v Pooler, 58 AD3d at 757; People v Ford, 44 AD3d at 1070; People v DeLeon, 40 AD3d 1008[2007]). Here, the defendant knowingly, voluntarily, and intelligently entered his negotiated pleaof guilty with the assistance of competent counsel, in exchange for a favorable sentence promise(see People v Pooler, 58 AD3d at 757; People v Ford, 44 AD3d at 1070; People v Mann, 32 AD3d 865[2006]). The sentencing court did not improvidently exercise its discretion in denying, without ahearing, the defendant's pro se motion to vacate his plea of guilty on the ground that he wasinnocent (see People v Doherty, 134 AD2d 513, 513 [1987]). The defendant's bareassertions of innocence at the time of sentencing were insufficient to justify granting his motionto withdraw his plea of guilty (seePeople v Cummings, 53 AD3d 587, 587 [2008]; People v Beasley, 50 AD3d 697, 697-698 [2008]; People vFord, 44 AD3d at 1070-1071; People v Mann, 32 AD3d at 866). Moreover, contraryto the defendant's arguments, his attorney was not obligated to "participate in a baseless prose motion to withdraw a plea of guilty which was voluntarily, [*2]knowingly, and intelligently made" (People v Caple, 279AD2d 635, 635 [2001]; see People v Pooler, 58 AD3d at 757; People v Ford, 44AD3d at 1070; People v Doherty, 134 AD2d at 514). There is no merit to the defendant'scontention that he was deprived of the effective assistance of counsel (see People vPooler, 58 AD3d at 757; People vBrooks, 36 AD3d 929, 930 [2007]; People v Grimes, 35 AD3d 882, 883 [2006]; People vCampbell, 180 AD2d 808, 809 [1992]; People v Bourdonnay, 160 AD2d 1014, 1015[1990]).
The defendant's contention that the County Court breached the plea agreement by directinghim to pay restitution is unpreserved for appellate review. However, we review the contention inthe exercise of our interest of justice jurisdiction (see CPL 470.15). Although a court isfree to reserve the right to order restitution as part of a plea agreement, the plea minutes in thiscase do not indicate that the plea of guilty was negotiated with terms that included restitution.Accordingly, under the circumstances of this case, we deem it appropriate to vacate the provisionof the defendant's sentence which imposed restitution, so as to conform the sentence imposed tothe promise made to the defendant in exchange for his plea of guilty (see People v Brown, 70 AD3d1047 [2010]; People v Ortega,61 AD3d 705 [2009]).
The defendant's remaining contentions are without merit. Mastro, J.P., Skelos, Dickersonand Lott, JJ., concur.