| People v Torres |
| 2021 NY Slip Op 01432 [192 AD3d 831] |
| March 10, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Torres, Appellant. |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Mary Faldich ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A.Harrington, J.), rendered April 26, 2019, convicting him of conspiracy in the second degree (twocounts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with a number of conspiracy offenses arising from his allegedinvolvement in gang-related murder and drug activity. On May 10, 2018, the defendant pleadedguilty to two counts of conspiracy in the second degree. About a month later, the defendant wascharged in a federal indictment for separate gang-related conduct that occurred prior to theconduct giving rise to the instant charges. In November 2018, prior to sentencing, the defendantmoved to withdraw his plea of guilty. The Supreme Court denied the motion without a hearing.The defendant appeals.
" 'The decision to permit a defendant to withdraw a previously entered plea of guiltyrests within the sound discretion of the court and generally will not be disturbed absent animprovident exercise of [that] discretion' " (People v Bhuiyan, 181 AD3d 699, 699 [2020], quoting People v Bennett, 115 AD3d 973,973-974 [2014] [internal quotation marks omitted]; see CPL 220.60 [3]; People v Balbuenatorres, 179 AD3d828, 829 [2020]). "When a defendant moves to withdraw a guilty plea, the nature and extentof the fact-finding inquiry 'rest[s] largely in the discretion of the Judge to whom the motion ismade' and a hearing will be granted only in rare instances" (People v Brown, 14 NY3d 113, 116 [2010], quoting People vTinsley, 35 NY2d 926, 927 [1974]; see People v Bhuiyan, 181 AD3d at 700)." 'Generally, a plea of guilty may not be withdrawn absent some evidence of innocence,fraud, or mistake in its inducement' " (People v Bhuiyan, 181 AD3d at 700,quoting People v Jackson, 170AD3d 1040, 1040 [2019]). A defendant's contention that his or her plea was not knowing,voluntary, and intelligent survives a valid appeal waiver (see People v Fontanet, 126 AD3d 723 [2015]).
Here, the Supreme Court did not improvidently exercise its discretion in denying, without ahearing, the defendant's motion to withdraw his plea of guilty. Reviewing the record as a wholeand the circumstances surrounding the entry of the plea (see People v Sougou, 26 NY3d 1052, 1055 [2015]), we concludethat the defendant's plea of guilty was knowingly, voluntarily, and [*2]intelligently made. In particular, the evidence the defendantsubmitted in support of his motion was insufficient to establish fraud or mistake in theinducement based on the similar but distinct federal charges that arose subsequent to his plea.Where, as here, "the guilty plea was voluntarily made with the advice of counsel following anappraisal of . . . the relevant factors" (People v Dixon, 29 NY2d 55, 57[1971]), the defendant "is not entitled to withdraw his guilty plea based on a subsequentunsupported claim of innocence" (People v Boyd, 129 AD3d 854, 854 [2015] [internal quotationmarks omitted]).
The defendant's further contention that his plea was not knowing, voluntary, or intelligentbecause he was not advised how the tolling provisions of Penal Law § 70.06 (1) (b)(v) would impact the possible imposition of an enhanced sentence as a prior felony offender isunpreserved for appellate review, because he did not move to withdraw his plea of guilty on thisground prior to the imposition of sentence (see People v Leasure, 177 AD3d 770, 772 [2019]; People v Rodriguez-Abreu, 170 AD3d895, 896 [2019]). In any event, the defendant's contention is without merit (see People v King, 166 AD3d1236, 1237 [2018]; People vRichardson, 132 AD3d 1022, 1022-1023 [2015]).
Contrary to the defendant's further contention, he was not deprived of the effective assistanceof counsel with respect to his plea (seePeople v Joseph, 142 AD3d 627, 627-628 [2016]). Dillon, J.P., LaSalle, Connolly andWooten, JJ., concur.