| People v Griffith |
| 2010 NY Slip Op 08959 [78 AD3d 1194] |
| November 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darwin Griffith, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, andBruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered March 18, 2009, convicting him of conspiracy in the second degree and criminal sale ofa controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Generally, vacatur of a plea of guilty is not lightly granted since such a plea is intended to"mark[ ] the end of a criminal case" and should not be the path toward further litigation(People v Taylor, 65 NY2d 1, 5 [1985]). "When a defendant moves to withdraw a guiltyplea, the 'fact-finding procedures' to be followed 'rest largely in the discretion of the Judge towhom the motion is made' " (People v Baret, 11 NY3d 31, 33 [2008], quoting Peoplev Tinsley, 35 NY2d 926, 927 [1974]; see CPL 220.60 [3]; People vAlexander, 97 NY2d 482, 485 [2002]; People v Moss, 70 AD3d 862 [2010]). A pleaof guilty will be upheld as valid if it was voluntarily, intelligently, and knowingly made (seePeople v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662,666 [1988]). Only rarely is a defendant entitled to a full evidentiary hearing on a motion towithdraw the plea (see People v Tinsley, 35 NY2d at 927). Instead, it is sufficient if thecourt affords the defendant an opportunity to present his arguments with respect to withdrawal(see People v Tinsley, 35 NY2d 926 [1974]; People v Fiumefreddo, 82 NY2d at543). Unsubstantiated and conclusory assertions of innocence and coercion that are contradictedby the record are insufficient to warrant withdrawal or a hearing (see People v Wiedmer,71 AD3d 1067 [2010]; People v Potter, 294 AD2d 603 [2002]; People v D'Orio,210 AD2d 424 [1994]; People v Grady, 110 AD2d 780 [1985]).
Here, the defendant's contention on appeal that his plea was not knowingly, voluntarily, orintelligently made because his prior attorney failed to inform him or misinformed him of thedeportation consequences of his plea of guilty is principally based on matter dehors the recordand, thus, cannot be reviewed on direct appeal (see People v Wiedmer, 71 AD3d 1067[2010]; People v Alexander, 62 AD3d 719, 720 [2009]; People v Drago, 50AD3d 920 [2008]; People v DeLuca, 45 AD3d 777 [2007]). To the extent that thedefendant's claim is reviewable on direct appeal, the record reveals that the defendant knowingly,voluntarily, and intelligently entered his negotiated plea of guilty (see People vFiumefreddo, 82 NY2d at 543; People v Lopez, 71 NY2d at 666). Accordingly, theSupreme Court providently exercised its [*2]discretion in denyingthe defendant's motion to withdraw his plea of guilty.
The defendant's claim that he was deprived of the effective assistance of counsel because hiscounsel failed to inform or misinformed him of the deportation consequences of his plea ofguilty, which allegedly rendered his plea involuntary, also is based principally on matter dehorsthe record, which cannot be reviewed on direct appeal (see People v Wiedmer, 71 AD3d1067 [2010]; People v Alexander, 62 AD3d at 720; People v Drago, 50 AD3d920 [2008]; People v DeLuca, 45 AD3d 777 [2007]). Fisher, J.P., Angiolillo, Belen andAustin, JJ., concur.