| People v Johnson |
| 2012 NY Slip Op 05547 [97 AD3d 695] |
| July 11, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Lee S.Johnson, Appellant. |
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Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Richard LongworthHecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert,J.), rendered February 17, 2011, convicting him of attempted assault in the first degree (twocounts), criminal possession of a weapon in the third degree, and menacing in the second 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 [trial court] and generally will not be disturbed absent animprovident exercise of discretion" (People v Caruso, 88 AD3d 809, 809 [2011]; see CPL220.60 [3]; People v Seeber, 4NY3d 780, 780 [2005]; People vDazzo, 92 AD3d 796, 796 [2012]; People v Amanze, 87 AD3d 1159, 1159 [2011]). "[A] hearing willbe granted only in rare instances" (People v Brown, 14 NY3d 113, 116 [2010]; see People vDazzo, 92 AD3d at 796; People vPerez, 83 AD3d 738, 739 [2011]).
Here, the record supports the County Court's determination denying, without a hearing, thedefendant's application to withdraw his plea of guilty, as his plea was entered knowingly,voluntarily, and intelligently (see People v Dazzo, 92 AD3d at 796-797; People vCaruso, 88 AD3d at 810; People vJackson, 87 AD3d 552, 553 [2011]; People v Perez, 83 AD3d 738 [2011]). The defendant's allegationthat his attorney coerced him to plead guilty is belied by his statements under oathacknowledging that he was voluntarily pleading guilty and that no one made any threats or forcedhim to enter his plea (see People v Dazzo, 92 AD3d at 796-797; People v Caruso,88 AD3d at 810; People v Wiedmer,71 AD3d 1067, 1067 [2010]). Moreover, the defendant acknowledged that he was satisfiedwith the representation he had received from his attorney, who negotiated a favorable pleaagreement on his behalf (see People v Caruso, 88 AD3d at 810; People vWiedmer, 71 AD3d at 1067). Further, the defendant's unsubstantiated allegations that hisattorney lied to him prior to his accepting the plea agreement are not supported by the record (see People v Duah, 91 AD3d 884,885 [2012]; People v Caruso, 88 AD3d at 810; People v Dunbar, 260 AD2d 644,644 [1999]; People v Quijada-Lopez, 256 AD2d 478, 478 [1998]; People vBonds, 254 AD2d 430, 430 [1998]).
In addition, contrary to the defendant's contention that he was not informed of the [*2]direct consequences of his plea concerning the term of postreleasesupervision, the record demonstrates that, prior to accepting the plea, the defendant was madeaware that the maximum term of postrelease supervision he would receive was five years, whichis the term of postrelease supervision he actually received at sentencing (see People v Bradshaw, 18 NY3d257, 264 [2011]; People vGravino, 14 NY3d 546, 553-554 [2010]; People v Johnson, 14 NY3d 483, 486 [2010]; People v Lopez, 6 NY3d 248, 256[2006]).
With respect to the defendant's contention that he was deprived of the effective assistance ofcounsel at the time of sentencing, though the defendant waived his right to appeal, the recorddoes not demonstrate that the waiver was knowing and intelligent (see People vBradshaw, 18 NY3d at 259; People v Lopez, 6 NY3d at 256; People v Calvi,89 NY2d 868, 871 [1996]). However, that contention is without merit. " '[A]n attorney assignedto represent a defendant in a criminal case has no duty to participate in a baseless pro semotion to withdraw a plea of guilty which was voluntarily, knowingly, and intelligentlymade' " (People v Ford, 44 AD3d1070, 1071 [2007], quoting People v Caple, 279 AD2d 635, 635 [2001]; see People v Bruno, 73 AD3d 941,942 [2010]; People v Smith, 61AD3d 1005, 1005-1006 [2009]; People v Pooler, 58 AD3d 757, 757 [2009]). Further, contrary tothe defendant's contention, the record demonstrates that defense counsel did not take anadversarial position at the sentencing proceeding regarding the defendant's application towithdraw his plea (see People v Davis, 161 AD2d 787, 788-789 [1990]). Angiolillo, J.P.,Eng, Lott and Austin, JJ., concur.