| People v Green |
| 2014 NY Slip Op 07887 [122 AD3d 1342] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCurlie Green, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered January 2, 2013. The judgment convicted defendant, upon his plea ofguilty, of rape in the first degree, robbery in the second degree (three counts) and robberyin the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of rape in the first degree (Penal Law § 130.35 [1]), three counts ofrobbery in the second degree (§ 160.10 [2] [b]), and robbery in the thirddegree (§ 160.05). Contrary to defendant's contention, the record establishesthat his waiver of the right to appeal was made knowingly, voluntarily and intelligently(see People v Lopez, 6NY3d 248, 256 [2006]). Defendant's valid waiver of the right to appealencompasses his contentions that Supreme Court erred in denying his motions tosuppress the physical evidence seized from his home and the identification evidence(see People v Kemp, 94 NY2d 831, 833 [1999]; People v Williams, 36NY2d 829, 830 [1975], cert denied 423 US 873 [1975]; People v Jenkins, 117 AD3d1528, 1529 [2014], lv denied 23 NY3d 1063 [2014]). The waiver alsoencompasses his contention that the sentence is unduly harsh and severe (seeLopez, 6 NY3d at 255). In any event, we conclude that the contentions with respectto the suppression motions and the sentence are without merit.
Defendant's contention that the plea was not knowing and voluntary survives hisvalid waiver of the right to appeal (see People v Lawrence, 118 AD3d 1501, 1501 [2014]), anddefendant preserved that contention for our review by moving to withdraw the plea(see People v Lopez, 71 NY2d 662, 665 [1988]). We nevertheless conclude thatdefendant's contention is belied by the record inasmuch as there is nothing in the recordto cast doubt on the voluntariness of the plea (see People v Knoxsah, 94 AD3d 1505, 1505 [2012]). Therecord establishes that defendant pleaded guilty voluntarily, that he had ample time todiscuss the plea with his attorney, and that he admitted the factual allegations of each ofthe five counts of the indictment.
We reject defendant's contention that the court abused its discretion in denying hismotion to withdraw his plea without conducting a hearing. Defendant alleged that he wascoerced by his attorney to plead guilty to crimes of which he was innocent. "When adefendant moves to withdraw a guilty plea, the nature and extent of the fact-findinginquiry 'rest[s] largely in the discretion of the Judge to whom the motion is made' and ahearing will be granted only in rare instances" (People v Brown, 14 NY3d 113, 116 [2010], quotingPeople v Tinsley, 35 NY2d 926, 927 [1974]). Here, the court provided defendantwith ample opportunity to present his claims in support of his motion to withdraw hisplea (see People v Walker,114 AD3d 1257, 1258 [2014], lv denied 23 NY3d 1044 [2014]), and therewas nothing in the record, with the exception of defendant's self-serving statements andhis attorney's assertions made upon information and belief, that supported his allegationthat he was coerced into pleading guilty (cf. Brown, 14 NY3d at 117).Present—Scudder, P.J., Peradotto, Lindley, Sconiers and Valentino, JJ.