| People v Ivey |
| 2012 NY Slip Op 06400 [98 AD3d 1230] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tony L. Ivey,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered April24, 2003. The judgment convicted defendant, upon his plea of guilty, of assault in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofassault in the second degree (Penal Law § 120.05 [2]). We reject defendant's contentionthat his conviction must be vacated because County Court failed to inform him of the length ofthe period of postrelease supervision. It is well settled that a defendant " 'must be aware of thepostrelease supervision component of [his or her] sentence in order to knowingly, voluntarily andintelligently choose among alternative courses of action' " (People v Louree, 8 NY3d 541, 545 [2007], quoting People v Catu, 4 NY3d 242, 245[2005]). Here, the prosecutor informed defendant immediately prior to the plea colloquy that theperiod of postrelease supervision in the plea agreement was five years, and the court thenexplained to defendant that postrelease supervision was a mandatory component of his sentence.Thus, at the time defendant entered his plea, he was aware that a period of five years ofpostrelease supervision would be a part of his sentence (cf. People v Cornell, 75 AD3d 1157, 1158-1159 [2010], affd16 NY3d 801 [2011]; People vPett, 77 AD3d 1281, 1281-1282 [2010]).
Contrary to defendant's further contentions, we conclude that the court engaged in adequatefact-finding procedures in denying defendant's motion to withdraw his guilty plea and did not errin failing to conduct an evidentiary hearing on the motion. The record establishes that, duringoral argument of the motion, the court afforded defendant "the requisite 'reasonable opportunityto present his contentions' in support of [the] motion" (People v Strasser, 83 AD3d 1411, 1411 [2011], quoting Peoplev Tinsley, 35 NY2d 926, 927 [1974]; see People v Buske, 87 AD3d 1354, 1355 [2011], lv denied18 NY3d 882 [2012]; People vHarris, 63 AD3d 1653, 1653 [2009]). Additionally, the court "did not abuse itsdiscretion in denying defendant's motion to withdraw the plea on the ground of coercion withoutconducting a hearing inasmuch as the record is devoid of 'a genuine question of fact as to theplea's voluntariness' " (People vCampbell, 62 AD3d 1265, 1266 [2009], lv denied 13 [*2]NY3d 795 [2009]). Indeed, defendant's contention that his plea wascoerced is belied by his statement during the plea colloquy that he had not been forced to pleadguilty (see People v Williams, 90AD3d 1546, 1547 [2011]; People vWolf, 88 AD3d 1266, 1267 [2011], lv denied 18 NY3d 863 [2011]). In addition,defendant alleged, inter alia, that the prosecutor threatened defendant's wife and sister-in-lawwith incarceration if they did not testify, thereby forcing him to plead guilty. We note, however,that the prosecutor specifically denied threatening any witnesses, and defense counsel did notchallenge the prosecutor's statement. Defendant's reliance on People v Wheaton (45NY2d 769, 770-771 [1978]) is misplaced inasmuch as the prosecutor herein effectivelycontroverted defendant's allegations.
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of assault in the first degree, and it must therefore be amended to reflect that he wasconvicted of assault in the second degree (see People v Saxton, 32 AD3d 1286, 1286-1287 [2006]).Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.