| People v Prunesti |
| 2021 NY Slip Op 02419 [193 AD3d 984] |
| April 21, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Prunesti, Appellant. |
Portale Randazzo LLP, White Plains, NY (Richard A. Portale of counsel), for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Steven A. Bender and William C.Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (SusanCacace, J.), rendered July 16, 2019, convicting him of criminal possession of a controlledsubstance in the fourth degree and unlawful surveillance in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court improvidently exercised its discretion indenying his motion to withdraw his plea of guilty to the crime of unlawful surveillance in thesecond degree.
"[I]n order to be valid and enforceable, a guilty plea must be entered voluntarily, knowinglyand intelligently" (People v Brown,14 NY3d 113, 116 [2010]). CPL 220.60 (3) provides that, after a defendant pleads guilty,"[a]t any time before the imposition of sentence, the court in its discretion may permit adefendant who has entered a plea of guilty . . . to withdraw such plea, and in suchevent the entire indictment, as it existed at the time of such plea, is restored." "The decision as towhether to permit a defendant to withdraw a previously entered plea of guilty rests within thesound discretion of the court and generally will not be disturbed absent an improvident exerciseof discretion" (People v Jacob, 94AD3d 1142, 1143 [2012]; see People v Alexander, 97 NY2d 482, 485 [2002]). Ingeneral, "such a motion must be premised upon some evidence of possible innocence or of fraud,mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199AD2d 529, 530 [1993]; see People v Nettles, 30 NY2d 841, 841-842 [1972]; People vEnglese, 7 NY2d 83, 87 [1959]; People v Haffiz, 77 AD3d 767, 768 [2010], affd 19 NY3d883 [2012]; People v Smith, 54AD3d 879, 880 [2008]). "The nature and extent of the fact-finding procedures prerequisite tothe disposition of such motions rest largely in the discretion of the Judge to whom the motion ismade" (People v Tinsley, 35 NY2d 926, 927 [1974]).
The defendant's postplea claims of innocence, made approximately five months after hefreely admitted his guilt to the crime of unlawful surveillance in the second degree, wereconclusory and unsubstantiated, and were insufficient to warrant vacatur of his plea (see People v [*2]Fisher, 28 NY3d 717, 722-724 [2017]; People vAlexander, 97 NY2d at 485; Peoplev Caccavale, 152 AD3d 537, 537-538 [2017]; cf. People v McIntyre, 40 AD2d1038, 1038 [1972]). Nothing that the defendant said or failed to say in his allocution negated anyelement of the offense or otherwise called into question his admitted guilt or the voluntariness ofhis plea (see People v Seeber, 4NY3d 780, 781 [2005]).
Accordingly, the defendant's motion to withdraw his guilty plea to unlawful surveillance inthe second degree was properly denied. Rivera, J.P., Hinds-Radix, Connolly and Iannacci, JJ.,concur.