Opinion
2007KNO10264.
Decided on January 9, 2008.
For the People: ADA Samuel Maynard.
For the Defendant: Henry P. DeChalus, Esq.
Defendant's Motion to Withdraw a Plea of Guilty.
Defendant was charged with Assault in the Third Degree, PL 120.00(1), Attempted Assault in the Third Degree, PL 11o/120.00(1), Menacing in the Third Degree, PL 120.15, and Harassment in the Second Degree, PL 240.26(1). On March 5, 2007, Defendant accepted the People's offer and plead guilty to a violation, PL 240.26. The offer was made after the People indicated that they did not have a corroborating affidavit and were therefore not ready to proceed to trial. Defendant was represented by private counsel and the charge and plea were fully allocuted by the court. Defendant was sentenced to a Conditional Discharge, a Full Order of Protection, and the District Attorney's DVAP program.
On November 13, 2007, Defendant's new attorney served and filed the instant motion to withdraw his plea of "guilty" pursuant to CPL 220.60 (incorrectly cited by Defendant as CPL 22.60), basing his arguments on the assertion that he did not understand the consequences of his actions and that he was not adequately represented by his previous attorney at the time he plead guilty. Further, Defendant alleges that he has a meritorious defense to the charges based on a handwritten, unsworn note allegedly executed by the complaining witness.
CPL 220.60.3, the section of the statute concerned with the withdrawal of previously entered guilty pleas, states that a defendant may withdraw his plea of guilty only in the discretion of the court and only prior to the imposition of the sentence. At the outset, the court notes that this instant motion was made almost seven months after Defendant was sentenced.
In support of his motion, Defendant cites People v. Jones, 44 NY2d 76, 404 NYS2d 85 (1978), the seminal New York case on the issue of plea withdrawal. In Jones, the defendant moved to withdraw his plea of guilty prior to being sentenced after he discovered that a key witness against him had died, a fact of which the People were cognizant at the time the plea offer was made but which was not disclosed to the defendant. In denying the defendant's motion, the Jones' court stated that "a defendant is not entitled to withdraw his plea merely because he
discovers that his calculus misapprehended the quality of the State's case." Id. At 79. However, the court noted that the reverse would be true if a defendant could demonstrate that the People coerced or threatened him into accepting the plea or persuaded him to acquiesce by affirmative deceit.
In the case at bar there is no allegation that the People misrepresented information to Defendant to induce his acceptance of the offer (indeed, the People stated that they were not ready and had no corroborating affidavit), nor is there any evidence that he was coerced or threatened into taking the People's offer.
Defendant also cites People v. Bryan DD, 76 AD2d 963, 429 NYS2d 77 (App. Term 3rd Dept. 1980), a case in which the court denied the defendant's motion to withdraw his plea of guilty. The court found that the defendant was fully allocuted on the charges and questioned as to his willingness to take the plea offer. The court stated that "whether or not to grant permission to withdraw a previously entered plea rests in the sound discretion of the court." Further, it is noted that the motion in Bryan DD was made prior to the imposition of the agreed upon sentence.
Lastly, Defendant cites People v. Kaminski , 284 AD2d 660, 728 NYS2d 213 (3rd Dept. 2001), a case concerned with a claim of double jeopardy, not one dealing with the withdrawal of a plea of guilty, and therefore inapposite to the instant matter.
In People v. Leonard, 25 AD3d 925, 808 NYS2d 810 (3rd Dept. 2006) the appellate court affirmed the lower court's denial of a motion to withdraw a plea of guilty. The defendant had been fully informed of the rights he was waiving by pleading guilty and his subsequent protestations of innocence were not substantiated by any evidence that is generally deemed sufficient to support a request for vacatur of the plea.
In the instant case, a review of the court minutes indicates that Defendant was fully informed of his rights and questioned as to the facts of the charges against him by the court. Defendant's own emotional distress is not the determining factor as to the voluntariness of his plea. There is no indication that he was forced or coerced into accepting the plea by any outside force. Further, Defendant has failed to meet the predicate requirements of CPL 220.60(3) by not making his motion prior to the imposition of the promised sentence. And lastly, the handwritten document
attached to Defendant's papers allegedly written by the complaining witness is evidentially insufficient to support his request. The document simply indicates the complaining witness' unwillingness to press charges.
Based on the foregoing, the court, in the exercise of its discretion, denies Defendant's motion to withdraw his previously entered plea of guilty to the charge of Harassment in the Second Degree.
This constitutes the decision and order of the court.