| People v Johnson |
| 2019 NY Slip Op 02355 [170 AD3d 1195] |
| March 27, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carless Johnson, Appellant. |
Jason M. Bernheimer, Katonah, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (William C. Milaccio andJennifer Spencer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (BarryE. Warhit, J.), rendered November 10, 2016, convicting him of assault in the first degree, uponhis 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, as wellas the nature and extent of the fact-finding inquiry, rests largely within the sound discretion ofthe court and generally will not be disturbed absent an improvident exercise of discretion" (People v Jemmott, 125 AD3d1005, 1006 [2015]; see CPL 220.60 [3]; People v Brown, 14 NY3d 113, 116 [2010]). A hearing will begranted only in rare instances where "the record raises a legitimate question as to thevoluntariness of the plea" (People v Brown, 14 NY3d at 116).
Here, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily,and intelligently entered (see People vSeeber, 4 NY3d 780 [2005]). Further, the defendant's unsubstantiated postpleastatements of innocence to a probation officer, which appear in the presentence investigationreport, were contradicted by the defendant's admissions made under oath at his plea allocutionand, thus, did not warrant withdrawal of the defendant's plea or a hearing (see People v Caccavale, 152 AD3d537, 537-538 [2017]; People vRodriguez, 142 AD3d 1189, 1190 [2016]; People v Pantojas, 182 AD2d 782[1992]). The defendant's challenge to the voluntariness of his plea of guilty on the ground that hewas coerced by his former counsel to plead guilty is unpreserved for appellate review because hismotion to withdraw his plea was not made on this ground (see CPL 470.05 [2]; People v Telfair, 144 AD3d 712[2016]; People v Ovalle, 112 AD3d971, 972 [2013]). In any event, the defendant's claim is belied by his statements under oathacknowledging that he was voluntarily pleading guilty, that he was satisfied with his attorney'srepresentation, and that he was not forced or threatened into pleading guilty (see People v Boria, 157 AD3d 811[2018]; People v Oden, 150 AD3d1269, 1270 [2017]). Accordingly, the Supreme Court providently exercised its discretion indenying, without a hearing, the defendant's motion to withdraw his plea of guilty. Dillon, J.P.,Cohen, Duffy and Christopher, JJ., concur.