| People v Jackson |
| 2011 NY Slip Op 06141 [87 AD3d 552] |
| August 2, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Jackson, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Lois Cullen Valerio,and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Cohen,J.), rendered December 9, 2008, convicting him of attempted criminal possession of a controlledsubstance in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The County Court providently exercised its discretion in denying the defendant's motion towithdraw his plea of guilty without a hearing (see CPL 220.60 [3]). "The decision topermit a defendant to withdraw a previously entered plea of guilty rests within the sounddiscretion of the County Court and generally will not be disturbed absent an improvident exerciseof discretion" (People v Douglas, 83AD3d 1092, 1092 [2011]; seePeople v Seeber, 4 NY3d 780 [2005]; People v Duncan, 78 AD3d 1193 [2010]; People v Haffiz, 77 AD3d 767[2010]; People v Pooler, 58 AD3d757 [2009]). "Only in the rare instance will a defendant be entitled to an evidentiary hearing"(People v Tinsley, 35 NY2d 926, 927 [1974]; see People v Perez, 83 AD3d 738, 738 [2011]; People v Smith, 54 AD3d 879,880 [2008]). "Instead, it is sufficient if the court affords the defendant an opportunity to presenthis [or her] arguments with respect to withdrawal" (People v Griffith, 78 AD3d 1194, 1195 [2010]; see People vPerez, 83 AD3d at 738).
Here, the defendant's contention that he was heavily medicated at the time of his plea was notsupported by the evidence submitted with his motion (see People v Hansen, 269 AD2d467 [2000]), and the plea colloquy reveals nothing to suggest that he was disoriented or unable tounderstand the proceedings or work with his attorney (see People v Kessler, 5 AD3d 504, 505 [2004]; People vWheeler, 249 AD2d 774, 774-775 [1998]). Furthermore, the evidence of the defendant'smedical history submitted in support of his motion was insufficient to rebut the presumption thathe was competent to enter a knowing, voluntary, and intelligent plea (see People vMorgan, 87 NY2d 878, 880 [1995]; see People v Batista, 82 AD3d 1113 [2011]; People v Bilal, 79 AD3d 900, 902[2010]; People v Gallo, 73 AD3d804, 804-805 [2010]; People vM'Lady, 59 AD3d 568 [2009]; People v Hansen, 269 AD2d 467 [2000]; cf. People v Galea, 54 AD3d 686[2008]). Additionally, "[t]he defendant's assertions that defense counsel forced him to pleadguilty and that he was deprived of the effective assistance of counsel are belied by his statementsunder oath on the record acknowledging that his plea had not been coerced and that the plea wasbeing entered of his own free will" (see People v Douglas, 83 AD3d at 1093; People vDuncan, 78 AD3d at 1194; [*2]People v Turner, 23 AD3d 503 [2005]; People v Martinez, 78 AD3d 966,967 [2010]; People v Gedin, 46AD3d 701 [2007]; People v Hall, 195 AD2d 521 [1993]).
The defendant's challenge to the procedure by which he was sentenced as a second felonyoffender (see CPL 400.21) is unpreserved for appellate review (see People vPellegrino, 60 NY2d 636, 637 [1983]; People v Carrion, 65 AD3d 693 [2009]; People v Lopez, 49 AD3d 899,899-900 [2008]; People vCarpenter, 52 AD3d 729 [2008]). In any event, the challenge is without merit, as theCounty Court followed the procedure set forth in CPL 400.21 after it permitted the defendant tochallenge the constitutionality of the alleged predicate convictions even after he had knowingly,voluntarily, and intelligently waived his right to assert such a challenge during his plea(see CPL 400.21; cf. People vSmith, 56 AD3d 695 [2008]). Mastro, J.P., Belen, Sgroi and Miller, JJ., concur.