| People v Caruso |
| 2011 NY Slip Op 07234 [88 AD3d 809] |
| October 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonV. Caruso, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Laurie K. Gibbons ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Calabrese,J.), rendered September 10, 2010, convicting him of attempted criminal possession of a weaponin the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The decision to permit a defendant to withdraw a previously entered plea of guilty restswithin the sound discretion of the Supreme Court and generally will not be disturbed absent animprovident exercise of discretion (see CPL 220.60 [3]; People v Seeber, 4 NY3d 780[2005]; People v Duncan, 78 AD3d1193 [2010]). "Only in rare instances will a defendant be entitled to an evidentiary hearingupon a motion to withdraw a plea of guilty" (People v Smith, 54 AD3d 879, 880 [2008]; see CPL 220.60[3]; People v Frederick, 45 NY2d 520, 524-525 [1978]). The record reflects that thedefendant's plea of guilty was knowing, voluntary, and intelligent (see People vFiumefreddo, 82 NY2d 536, 543 [1993]; People v Lopez, 71 NY2d 662, 666 [1988];People v Harris, 61 NY2d 9, 17 [1983]; People v Douglas, 83 AD3d 1092, 1093 [2011]; People vStubbs, 110 AD2d 725, 728 [1985]). The recantation evidence submitted in support of thedefendant's motion to withdraw his plea of guilty "was inherently unreliable and insufficient,alone, to justify withdrawal of the plea" (People v Douglas, 83 AD3d at 1093; see People v Mortensen, 60 AD3d971, 972 [2009]; People vBranton, 35 AD3d 1035, 1036 [2006]). Furthermore, the defendant's contentionregarding his innocence is unsupported by the record and did not afford a basis for withdrawal ofthe plea of guilty (see People v Alexander, 97 NY2d 482, 485 [2002]; People vDouglas, 83 AD3d at 1093; Peoplev Duncan, 78 AD3d 1193 [2010]).
The defendant's assertions that defense counsel forced him to plead guilty and that he wasdeprived of the effective assistance of counsel are belied by his statements under oath on therecord acknowledging that his plea had not been coerced and that the plea was being entered ofhis own free will (see People v Douglas, 83 AD3d at 1093; People v Duncan, 78 AD3d 1193[2010]). Further, " '[t]he defendant expressed no dissatisfaction with his counsel at the time ofthe plea, after the court had fully apprised him of the consequences of pleading guilty' "(People v Douglas, 83 AD3d at 1093, quoting People v Hall, 195 AD2d 521, 522[1993]). The defendant received an advantageous plea, and there is nothing in the record whichcasts doubt on the apparent effectiveness of counsel (see [*2]People v Henry, 95 NY2d 563, 565 [2000]; People vBenevento, 91 NY2d 708, 713 [1998]; People v Ford, 86 NY2d 397, 404 [1995]; People v Yarborough, 83 AD3d875 [2011]). Moreover, the defendant's claim of ineffective assistance of counsel was largelybased upon unsubstantiated conclusory allegations and, thus, his motion pursuant to CPL 220.60(3) was properly denied without a hearing (see People v Alexander, 97 NY2d at 486;People v Benevento, 91 NY2d at 712-713; People v Douglas, 83 AD3d at 1093;People v Dunbar, 260 AD2d 644 [1999]). Dillon, J.P., Belen, Roman and Miller, JJ.,concur.