Opinion
8465 Ind. 1716/13
02-21-2019
The PEOPLE of the State of New York, Respondent, v. Ernest BELLINGER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Renwick, J.P., Tom, Singh, Moulton, JJ.
The court properly denied defendant's motion to withdraw the guilty pleas at issue on appeal. Defendant pleaded guilty to three counts of attempted first-degree robbery, involving three incidents, with a promised sentence of three concurrent 15–year terms. At sentencing, the court granted defendant's motion to withdraw one of the pleas, on a ground specific to that plea, and dismissed that count as satisfied by the remaining two concurrent 15–year sentences. Defendant did nothing to alert the court to his present claim that he was thus entitled to withdraw the remaining pleas on the ground that all three pleas were part of a single plea bargain. Accordingly, this claim is unpreserved (see People v. Mackey, 77 N.Y.2d 846, 567 N.Y.S.2d 639, 569 N.E.2d 442 [1991] ), and we decline to review it in the interest of justice. As an alternative holding, we find, based on all the circumstances, that defendant received a sufficient remedy when the court dismissed the lone allegedly tainted count, and that the remaining pleas were not induced by an unfulfilled promise (see People v. Collier, 22 N.Y.3d 429, 433, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013], cert denied 573 U.S. 908, 134 S.Ct. 2730, 189 L.Ed.2d 770 [2014] ).
To the extent defendant moved to withdraw the two pleas at issue, he did so solely on a generalized claim of innocence. That claim was baseless and contradicted by the plea allocution, and the court providently exercised its discretion in rejecting it without further inquiry (see People v. Fisher, 28 N.Y.3d 717, 726, 49 N.Y.S.3d 344, 71 N.E.3d 932 [2017] ; People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332 [1978] ). The court also providently exercised its discretion in denying defendant's request for new counsel at sentencing, because defendant did not establish good cause for a substitution. Defendant's only colorable claim of ineffective assistance related to the count that the court had just dismissed.
Defendant did not establish his entitlement to any kind of evidentiary hearing relating to any Fourth Amendment issues. The police obtained a warrant to search a car that defendant left on the street after fleeing from the scene of one of the robberies. Defendant was not entitled to a Franks / Alfinito hearing to challenge the veracity of the affiant's statements in the search warrant application (see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978] ; People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 [1965] ), because defendant failed to make the requisite "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit" ( Franks, 438 U.S. at 155–156, 98 S.Ct. 2674 ). Defendant cast no such doubt on the affiant's statements, particularly with regard to the principal basis for the warrant, which is that, from a vantage point outside the car, an officer saw part of a handgun protruding from under the driver's seat. Defendant's claim that the police searched the car before applying for a warrant is speculative, and his submissions at various junctures, even when viewed collectively, did not create a factual dispute warranting a hearing into whether there was any unlawful police conduct (see generally People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ).
We perceive no basis for reducing the sentence.