| People v Bhuiyan |
| 2020 NY Slip Op 01631 [181 AD3d 699] |
| March 11, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Safwan R. Bhuiyan, Appellant. |
Metcalf & Metcalf, P.C., New York, NY (Steven A. Metcalf II of counsel), forappellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Sharon Y. Brodt, and Russell Shapiro of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County(Barry A. Schwartz, J.), rendered July 28, 2017, convicting him of assault in the seconddegree, upon his plea of guilty, and imposing sentence, and (2), by permission, from anorder of the same court dated June 15, 2018, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate the judgment of conviction rendered July 28,2017.
Ordered that the judgment and the order are affirmed.
Prior to sentencing, the defendant moved to withdraw his plea of guilty, assertingthat he was coerced by his attorney into pleading guilty, that he was deprived of theeffective assistance of counsel, and that he was innocent. The Supreme Court denied themotion and imposed sentence. The defendant filed a timely notice of appeal from thejudgment of conviction. Thereafter, the defendant moved pursuant to CPL 440.10 (1) (h)to vacate the judgment of conviction, raising substantially the same contentions he raisedin the motion to withdraw his guilty plea. The Supreme Court denied the motion. ThisCourt granted the defendant leave to appeal from the order denying the CPL 440.10motion, and subsequently consolidated the appeals from the judgment and the order.
" 'The decision to permit a defendant to withdraw a previously entered pleaof guilty rests within the sound discretion of the court and generally will not be disturbedabsent an improvident exercise of discretion' " (People v Bennett, 115 AD3d973, 973-974 [2014], quoting People v Howard, 109 AD3d 487, 487 [2013]; seeCPL 220.60 [3]). When a defendant moves to withdraw a plea of guilty, "the nature andextent of the fact-finding inquiry 'rest[s] largely in the discretion of the Judge to whomthe motion is made' and a hearing will be granted only in rare instances" (People v Brown, 14 NY3d113, 116 [2010], quoting People v Tinsley, 35 NY2d 926, 927 [1974])."Generally, a plea of guilty may not be withdrawn absent some evidence of innocence,fraud, or mistake in its inducement" (People v Jackson, 170 AD3d 1040, 1040 [2019] [internalquotation marks omitted]). A defendant's contention that his plea was not knowing,voluntary, and intelligent survives a valid appeal waiver (see People v Fontanet, 126AD3d 723 [2015]).
Here, the Supreme Court did not improvidently exercise its discretion in denying,without a hearing, the defendant's motion to withdraw his plea of guilty. Reviewing therecord as a whole and the circumstances surrounding the entry of the plea (see People v Sougou, 26 NY3d1052, 1055 [2015]; People v Harris, 61 NY2d 9, 19 [1983]), we concludethat the defendant's plea of guilty was knowingly, voluntarily, and intelligentlymade.
The defendant's contention that trial counsel coerced him to plead guilty is withoutmerit. "The mere fact that defense counsel may have advised [the defendant] as to therisks of trial, including the possible maximum sentence if he was convicted, isinsufficient to establish ineffective assistance of counsel or coercion" (People v Mann, 32 AD3d865, 866 [2006]; see Peoplev Smith, 123 AD3d 950, 951 [2014]). Furthermore, there is no merit to thedefendant's contention that he was coerced to plead guilty by certain adverse rulingsmade by the Supreme Court during the pre-plea proceedings. The court's rulings wereproper (see People v Mateo, 2 NY3d 383, 424-425 [2004]; People v Williams, 49 AD3d672, 672 [2008], affd 12 NY3d 126 [2009]), and did not implicate thedefendant's right to maintain his innocence and proceed to trial (cf. People v Grant, 61 AD3d177 [2009]).
The defendant's valid waiver of his right to appeal precludes appellate review of hisclaim of ineffective assistance of counsel, except to the extent that the alleged ineffectiveassistance of counsel may have affected the voluntariness of his plea (see People v Brown, 170AD3d 878, 879 [2019]). To the extent that the defendant contends that theineffective assistance of counsel affected the voluntariness of his plea, the recorddemonstrates that the defendant received an advantageous plea, which he accepted afterconsulting with counsel, and nothing in the record casts doubt on the apparenteffectiveness of counsel (see People v Brown, 170 AD3d at 879). To the extentthat the defendant argues that his trial counsel failed to conduct a reasonableinvestigation or consult with expert witnesses, by pleading guilty, the defendant forfeitedthose claims because they did not directly involve the plea-negotiation process (seeid.; People v Grant, 121AD3d 1016 [2014]).
The defendant's post-plea assertion of innocence did not afford a basis forwithdrawal of the plea of guilty (see People v Douglas, 83 AD3d 1092, 1093 [2011]). Therecantation evidence submitted in support of the motion to withdraw the plea wasinherently unreliable (see id. at 1093), and did not exculpate the defendant of thecharge to which he pleaded guilty (see People v Fisher, 28 NY3d 717, 722-724 [2017]).
We agree with the Supreme Court's determination that sufficient facts appeared onthe record, including the submissions made by the defendant in support of his motion towithdraw his plea, to permit adequate review of the issues raised in the defendant's CPL440.10 motion upon his direct appeal, and thus that the defendant was procedurallybarred from raising his claims under CPL 440.10 (1) (h) (see CPL 440.10 [2] [b];cf. People v Hernandez, 125AD3d 885, 887 [2015]). To the extent that the defendant raised matters dehors therecord in support of his claim of actual innocence, such a claim did not lie under CPL440.10 (1) (h) in light of his plea of guilty (see People v Tiger, 32 NY3d 91 [2018]). Accordingly, weagree with the court's denial, without a hearing, of the defendant's motion to vacate thejudgment of conviction.
The defendant's remaining contentions are without merit. Scheinkman, P.J., Cohen,LaSalle and Iannacci, JJ., concur.