| People v Dorsey |
| 2019 NY Slip Op 01852 [170 AD3d 1325] |
| March 14, 2019 |
| Appellate Division, Third Department |
[*1](March 14, 2019)
| The People of the State of New York,Respondent, v Rashod Dorsey, Appellant. |
Craig S. Leeds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Rumsey, J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered April28, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree, and (2) by permission, from anorder of said court, entered October 28, 2015 in Albany County, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant and Hassan Riddick were each charged by indictment with attempted murder inthe second degree, attempted assault in the first degree, assault in the second degree and twocounts of criminal possession of a weapon in the second degree based on allegations thatdefendant tossed a handgun to Riddick, who fired six shots at the victim, who was doing yardwork at the time. The victim was struck by one bullet and was transported to the hospital fortreatment. Defendant moved to, among other things, suppress a photo array on the basis that itwas unduly suggestive. After conducting a Wade hearing, Supreme Court denieddefendant's motion. Defendant thereafter pleaded guilty to a reduced charge of attemptedcriminal possession of a weapon in the second degree in satisfaction of the five-count indictmentand waived his right to appeal.
Defendant subsequently moved to withdraw his guilty plea based on newly discoveredevidence, consisting of a notarized letter from the victim recanting his prior statementsimplicating defendant in the charged crimes. Supreme Court denied the motion and sentenceddefendant, as a second felony offender, to the agreed-upon prison term of five years followed byfive years of postrelease supervision. Following sentencing, defendant filed a pro se CPL 440.10motion to vacate the judgment of conviction based on the victim's recantation. Supreme Courtdenied the motion without a hearing, finding that the record was sufficient to permit review ofdefendant's claim on direct appeal. Defendant appeals from the judgment of conviction and, bypermission, from the postjudgment order.
Defendant's unchallenged appeal waiver precludes his challenges to the factual sufficiency ofhis plea (see People v Welden, 156AD3d 1241, 1241 [2017]; People vRobinson, 155 AD3d 1252, 1253 [2017], lv denied 30 NY3d 1119 [2018]) andto Supreme Court's adverse suppression ruling (see People v Sanders, 25 NY3d 337, 342 [2015]; People vKemp, 94 NY2d 831, 833 [1999]; People v Zippo, 136 AD3d 1222, 1222 [2016], lv denied 27NY3d 1141 [2016]). Although defendant's ineffective assistance of counsel claim survives hisappeal waiver to the extent that it impacts the voluntariness of his plea, it is unpreserved forreview in the absence of a postallocution motion based on said ground (see People v Muller, 166 AD3d1240, 1241 [2018]; People vEdwards, 160 AD3d 1280, 1280 [2018], lv denied 31 NY3d 1147 [2018]).
We are unpersuaded by defendant's further contention that Supreme Court erred in denyinghis motion to withdraw his guilty plea without a hearing. "The nature and extent of thefact-finding procedures necessary to decide a motion to withdraw a guilty plea rest within thediscretion of the trial court, and only in the rare instance will a defendant be entitled to anevidentiary hearing" (People vRiddick, 136 AD3d 1124, 1124 [2016] [internal quotation marks, brackets and citationsomitted], lv denied 27 NY3d 1154 [2016]). The basis for defendant's motion was thenotarized letter in which the victim recanted his statements regarding defendant's involvement inthe crimes charged. We note that the codefendant raised the same argument on a prior appealbased on the same letter that defendant submitted in this case, and, for the reasons set forth in ourdecision in the prior appeal, we conclude that Supreme Court properly denied defendant's motionto withdraw without conducting a hearing (id.).
Defendant's challenge to the sentence as harsh and excessive is also precluded by his appealwaiver (see People v Lopez, 6NY3d 248, 256 [2006]; People vGorman, 165 AD3d 1349, 1349 [2018], lv denied 32 NY3d 1125 [2018]).Finally, Supreme Court properly denied defendant's CPL 440.10 motion without a hearing. At thetime of the motion, the judgment was appealable or pending on appeal, and the record wassufficient to permit adequate review of defendant's claim of innocence, based on the victim'srecantation letter, on direct appeal (see CPL 440.10 [2] [b]; People v Bruno, 97 AD3d 986,986-987 [2012], lv denied 20 NY3d 931 [2012]; People v Saunders, 301 AD2d869, 870 [2003], lv denied 100 NY2d 542 [2003]).
Egan Jr., J.P., Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment and orderare affirmed.