| People v Barnes |
| 2022 NY Slip Op 06256 [210 AD3d 792] |
| November 9, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alfred Barnes, Appellant. |
Andrew E. MacAskill, Garden City, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and MadelineCollins of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robert G. Bogle, J.), rendered August 26, 2020, convicting him of attempted criminalpossession of a weapon in the second degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
On December 12, 2019, the defendant entered a plea of guilty to attempted criminalpossession of a weapon in the second degree. As part of the plea agreement, thedefendant waived his right to appeal. On August 26, 2020, prior to sentencing, thedefendant moved to withdraw his plea of guilty. The Supreme Court denied the motionwithout a hearing and imposed sentence.
The defendant's waiver of his right to appeal was knowing, intelligent, and voluntary(see People v Thomas, 34NY3d 545, 559-560 [2019]; People v Green, 173 AD3d 1202, 1202 [2019]; People v Koch, 168 AD3d977, 978 [2019]; People vBatista, 167 AD3d 69, 73-74 [2018]). The Supreme Court accurately describedthe distinct rights forfeited by the appeal waiver (see People v Koch, 168 AD3dat 978; People v Rodriguez,78 AD3d 1204, 1205 [2010]; cf. People v Walder, 186 AD3d 1272, 1272 [2020]).Furthermore, the nature and terms of the plea agreement and the defendant's age,experience, and background do not cast any doubt upon the validity of the appeal waiver(see People v Thomas, 34 NY3d at 565; People v Sanders, 112 AD3d 748, 750 [2013], affd25 NY3d 337 [2015]; cf. Peoplev Fahey, 200 AD3d 978, 979 [2021]).
"The defendant's valid waiver of his right to appeal precludes appellate review of hischallenge to the hearing court's suppression determination" (People v Matos, 176 AD3d976, 976 [2019]; see People v Kemp, 94 NY2d 831, 833 [1999]; People v Stevenson, 196 AD3d705, 706 [2021]).
"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 absentan improvident exercise of discretion" (People v Matos, 176 AD3d at 976, citingCPL 220.60 [3]; see People vHollmond, 191 AD3d 120, 136 [2020]). "Such a motion 'must be premised uponsome evidence of possible innocence or of fraud, mistake, coercion or involuntariness inthe taking of the plea' " (People v Matos, 176 AD3d at 976, quotingPeople v De Jesus, 199 AD2d 529, 530 [1993]; see People v [*2]Prunesti, 193 AD3d 984, 985 [2021]). "Only inrare instances will a defendant be entitled to an evidentiary hearing upon a motion towithdraw a plea of guilty" (People v Matos, 176 AD3d at 976 [internal quotationmarks omitted]). Here, the record demonstrates that the defendant's plea of guilty wasknowingly, voluntarily, and intelligently entered (see id.; People v Boria, 157 AD3d811, 812 [2018]), and nothing in the record supports the conclusion that, at the timeof the plea proceeding, the defendant lacked the capacity to understand the nature of theproceedings or the consequences of his plea (see People v Jones, 207 AD3d 563, 564 [2022]; People v Manzanales, 170AD3d 752, 753 [2019]; People v DeBenedetto, 120 AD3d 1428, 1429 [2014]).Accordingly, the Supreme Court providently exercised its discretion in denying thedefendant's motion to withdraw his plea without a hearing.
The defendant's challenge to the procedure used to adjudicate him a second violentfelony offender is unpreserved for appellate review (see People v Lollie, 204 AD3d 1430, 1431 [2022]; People v Stevens, 171 AD3d1106, 1108 [2019], citing CPL 470.05 [2]), and we decline to reach it in the exerciseof our interest of justice jurisdiction. Barros, J.P., Brathwaite Nelson, Chambers andWan, JJ., concur.