| People v Smith |
| 2014 NY Slip Op 08866 [123 AD3d 950] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dwayne Smith, Appellant. |
Robert DiDio, Kew Gardens, N.Y. (Elisha Rudolph of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, VictorBarall, and Marie-Claude P. Wrenn-Myers of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered June 6, 2012, convicting him of criminal possession of a weapon inthe second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
A judge is the sole arbiter of the need for recusal absent a legal disqualification underJudiciary Law § 14, and a court's decision whether to recuse is a matter ofdiscretion and personal conscience (see People v Moreno, 70 NY2d 403, 405-406[1987]; Matter of State of NewYork v Leon F., 84 AD3d 1098, 1100 [2011]). Here, nothing the Supreme Courtsaid during the proceedings gave any hint of any judicial bias (see People v Weekes, 46 AD3d583, 584-585 [2007]). To the contrary, the record at both the plea proceeding andthe proceeding at which assigned counsel was relieved from representing the defendantestablishes that the court carefully and directly explained the defendant's options to him.Thus, there was no basis to question the court's ability to fairly decide the defendant'smotion to withdraw his plea of guilty. Accordingly, the Supreme Court providentlyexercised its discretion in refusing to recuse itself from deciding the defendant's motionto withdraw his plea of guilty (see People v Brockway, 88 AD2d 1039, 1040[1982]).
The decision whether to permit a defendant to withdraw a plea of guilty, as well asthe nature and extent of the fact-finding inquiry, rests largely within the sound discretionof the court (see CPL 220.60 [3]; People v Brown, 14 NY3d 113, 116 [2010]; People v DeBenedetto, 120AD3d 1428, 1429 [2014]). Here, the Supreme Court providently exercised itsdiscretion in denying the defendant's motion to withdraw his plea of guilty without ahearing (see People v DeBenedetto, 120 AD3d at 1429). Initially, the record ofthe plea proceeding belies the defendant's contention that he was not aware of thepostrelease supervision component of the agreed-upon sentence until after he actuallyentered his plea of guilty. When the court first delineated the proposed agreement, it toldthe defendant that the sentence would include a five-year period of postreleasesupervision (cf. People vCatu, 4 NY3d 242, 245 [2005]). The defendant's further contention that thecourt and his assigned counsel forced him to plead guilty is similarly without merit. Thecourt's colloquy with the defendant as to his options was thorough, and not coercive. Inaddition, even accepting the truth of the matter asserted in the affidavits of the defendantand his mother that were submitted in support [*2]of themotion, nothing that assigned counsel allegedly said to the defendant before he enteredhis plea of guilty was coercive. Rather, the affidavits, if true, would merely establish thatassigned counsel, who had worked diligently to obtain the best disposition possible forher client, fulfilled her professional obligations in advising the defendant as to whether toaccept the plea offer. Under the circumstances of this case—including thedefendant's oft-stated desire not to go to trial; the strength of the People's evidence asshown in the record of the pretrial proceedings; and the life sentence that the defendantwould have faced if convicted after trial—counsel's strongly worded advice thatthe defendant accept the plea offer was not coercive (cf. generally Boria v Keane,99 F3d 492 [2d Cir 1996]). Accordingly, inasmuch as the record before the SupremeCourt established that the defendant entered his plea of guilty knowingly, voluntarily,and intelligently, the court did not improvidently exercise its discretion in denying thedefendant's motion to withdraw his plea without a hearing, and there is no basis for thisCourt to reverse the judgment of conviction (see People v Bediako, 119 AD3d 598, 598 [2014]; People v Mirecki, 63 AD3d1089, 1089 [2009]; People v Fishon, 97 AD2d 773, 773 [1983]). Skelos,J.P., Balkin, Austin and Barros, JJ., concur.