| People v Richards |
| 2020 NY Slip Op 04973 [186 AD3d 1411] |
| September 16, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kennedy A. Richards, Appellant. |
Goldberg & Allen, LLP, New York, NY (Jay K. Goldberg of counsel), forappellant.
Letitia James, Attorney General, New York, NY (Nikki Kowalski and Jodi A. Danzig ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Craig S.Brown, J.) rendered November 9, 2018, convicting him of criminal sale of a controlled substancein the first degree and conspiracy in the second degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The County Court providently exercised its discretion in denying, without a hearing, thedefendant's motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty restswithin the sound discretion of the court, and generally the court's determination will not bedisturbed absent an improvident exercise of the court's discretion (see CPL 220.60 [3];People v Alexander, 97 NY2d 482, 485 [2002]; People v Street, 144 AD3d 711, 711-712 [2016])." 'Generally, a plea of guilty may not be withdrawn absent some evidence of innocence,fraud, or mistake in its inducement' " (People v Boria, 157 AD3d 811, 811 [2018], quoting People v Smith, 54 AD3d 879, 880[2008]; see People v Tomlinson,178 AD3d 967, 967 [2019]). " 'Only in rare instances will a defendant be entitled toan evidentiary hearing upon a motion to withdraw a plea of guilty' " (People vTomlinson, 178 AD3d at 967, quoting People v Smith, 54 AD3d at 880; seePeople v Tinsley, 35 NY2d 926, 927 [1974]). Here, the record demonstrates that thedefendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v Seeber, 4 NY3d 780[2005]; People v Boria, 157 AD3d at 812).
By pleading guilty, the defendant forfeited appellate review of his claim of ineffectiveassistance of counsel to the extent that the claim does not directly involve the plea negotiatingprocess and sentence (see People v Petgen, 55 NY2d 529, 535 [1982]; People v Dunne, 106 AD3d 928[2013]). To the extent that the defendant contends that the ineffective assistance of counselinvolved the negotiation of the plea, the record reveals that he received the effective assistance ofcounsel (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Ford, 86NY2d 397, 404 [1995]; People vPenaranda, 178 AD3d 858 [2019]; People v Boria, 157 AD3d at 812). Rivera,J.P., Leventhal, Hinds-Radix and Christopher, JJ., concur.