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People v. Roger Council

Appellate Division of the Supreme Court of New York, First Department
Jun 21, 1990
162 A.D.2d 293 (N.Y. App. Div. 1990)

Opinion

June 21, 1990

Appeal from the Supreme Court, Bronx County (Alexander Chananau, J.).


Contrary to defendant's contention, the court properly accepted and thereafter denied his motion to withdraw his plea. The plea herein was entered knowingly and voluntarily (Boykin v Alabama, 395 U.S. 238, 242; People v. Harris, 61 N.Y.2d 9, 17). There is no mandatory, uniform catechism to render a plea appropriate (People v. Nixon, 21 N.Y.2d 338, 353, cert denied sub nom. Robinson v. New York, 393 U.S. 1067). Here, after defendant acknowledged waiver of his constitutionally guaranteed rights and described the specifics of his case, the court validly accepted the plea. Nor did the court err in refusing the request at sentencing to withdraw the plea and deny Council's motion to withdraw. The decision to deny a motion to withdraw a previously entered guilty plea rests within the sound discretion of the trial court (People v. Long, 157 A.D.2d 504). The record does not support defendant's contention that the guilty plea was coerced. Nor is a generalized assertion of innocence sufficient to justify withdrawal of a plea (People v. Cannon, 150 A.D.2d 383).

Defendant also contends that the photo and lineup identifications should have been suppressed. The lineup procedure was not unduly suggestive (Simmons v. United States, 390 U.S. 377; People v. Adams, 53 N.Y.2d 241). Here, the complainant selected defendant's photograph without any prompting by the police and those viewing the lineup were taken separately to the viewing room and then segregated from the others to prevent communication. Although contradicted by the police, even if the detective had informed the complainant that he had selected defendant's photograph, that alone would not have presented a risk of influencing subsequent lineup identification (see, People v. Ballard, 140 A.D.2d 529, 530, lv denied 72 N.Y.2d 954). Nor would any statement that those viewing the lineup would see the person "who did something" to the complainant render the otherwise proper lineup unduly suggestive (see, People v Rodriguez, 64 N.Y.2d 738, 741).

Although defendant also raises contentions regarding the Sandoval hearing, his voluntary plea of guilty affirmatively waived appellate review of the Sandoval rulings (People v Motley, 69 N.Y.2d 870; People v. Gilliam, 65 A.D.2d 533).

Concur — Ross, J.P., Carro, Wallach and Rubin, JJ.


Summaries of

People v. Roger Council

Appellate Division of the Supreme Court of New York, First Department
Jun 21, 1990
162 A.D.2d 293 (N.Y. App. Div. 1990)
Case details for

People v. Roger Council

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROGER COUNCIL…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 21, 1990

Citations

162 A.D.2d 293 (N.Y. App. Div. 1990)
556 N.Y.S.2d 641

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