People v. SimpsonPeople v. Simpson
Appeals (1) from a judgment of the County Court of Broome County (Dooley, J.), rendered January 18, 2018, convicting defendant upon his plea of guilty of the crimes of attempted assault in the first degree, criminal possession of a weapon in the second degree and assault in the second degree, and (2) by permission, from an order of said court, entered March 10, 2020, which denied defendant‘s motion pursuant to
In March 2017, defendant was charged by indictment with attempted assault in the first degree, criminal possession of a weapon in the second degree, assault in the second degree and menacing in the second degree, arising from an incident in January 2017 in which defendant shot another person outside of a bar in the City of Binghamton, Broome County. After pretrial motion practice, which resulted in County Court dismissing the menacing in the second degree charge, defendant entered into a plea agreement whereby he pleaded guilty to the three remaining charges in return for a sentence not to exceed eight years in prison, with three years of postrelease supervision. Prior to sentencing, defendant moved to withdraw his plea, claiming that, due to his intoxication at the time of the incident, he had no independent recollection of the shooting and that his counsel had received a letter from the victim stating that defendant was not the person who shot him. In a January 2018 decision and order, County Court denied the motion without a hearing. Consistent with the terms of the plea agreement, County Court thereafter sentenced defendant to concurrent prison terms of eight years, to be followed by three years of postrelease supervision, for his convictions of attempted assault in the first degree and criminal possession of a weapon in the second degree and to a lesser concurrent prison term on his remaining conviction of assault in the second degree. Defendant‘s subsequent motion pursuant to
County Court did not abuse its discretion in denying defendant‘s motion to withdraw his guilty plea without a hearing. “Whether to permit a defendant to withdraw his or her plea of guilty is left to the sound discretion of County Court, and withdrawal will generally not be permitted absent some evidence of innocence, fraud or mistake in its inducement” (People v Snow, 159 AD3d 1278, 1279 [2018] [internal quotation marks and citations omitted]; see
Turning to defendant‘s CPL article 440 motion, defendant contends that his plea to count 1 of the indictment, charging him with attempted assault in the first degree, cannot stand because that count failed to allege a crime and, therefore, the indictment with respect thereto was jurisdictionally defective. As defendant‘s claim can be determined on the record and was reviewable on direct appeal, County Court properly denied the motion without a hearing with respect to this claim, as such claim cannot be advanced in the context of a CPL article 440 motion (see
Defendant‘s contention that his guilty plea was not knowing, voluntary and intelligent because County Court did not explain the constitutional rights that he was waiving by pleading guilty or ascertain that he understood
Finally, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice and reject defendant‘s claim that the sentence, which was in accordance with terms of the plea agreement, was harsh and excessive (see People v Hatcher, 168 AD3d 1313, 1313 [2019], lvs denied 33 NY3d 1031, 1032 [2019]; People v Goldwire, 168 AD3d 1286, 1286 [2019], lv denied 33 NY3d 976 [2019]). To the extent not specifically addressed, defendant‘s remaining arguments, both on his direct appeal as well as those raised on his appeal from the order denying his postconviction motion, have been reviewed and found to be without merit.
Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
Aarons, J. (dissenting).
Defendant, among the numerous arguments advanced on appeal, contends that his guilty plea
“Although trial courts are not required to adhere to a rigid script or formula prior to accepting a defendant‘s guilty plea, the record must affirmatively demonstrate that the defendant waived his or her constitutional trial-related rights — namely, the privilege against self-incrimination, the right to a jury trial and the right to be confronted by witnesses” (People v Demkovich, 168 AD3d 1221, 1221 [2019] [citations omitted]; see People v Tyrell, 22 NY3d 359, 365 [2013]). Mindful that County Court was not required “to specifically enumerate all the rights to which . . . defendant was entitled” (People v Tyrell, 22 NY3d at 365 [internal quotation marks and citation omitted]), as defendant notes, the court nonetheless failed to explain, let alone refer to, any of the constitutional trial-related rights that he would forfeit by pleading guilty (see People v Klinger, 129 AD3d 1115, 1117 [2015]). Rather, at the plea proceeding, the court focused almost exclusively on defendant‘s waiver of an intoxication defense, as well as any other potential defenses, and whether defendant understood the benefits and risks of going forward with a trial. The record also fails to disclose that the court “obtain[ed] any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea” (People v Demkovich, 168 AD3d at 1222; see People v Cotto, 156 AD3d 1063, 1064 [2017]; People v Lowe, 133 AD3d 1099, 1101 [2015]).
Accordingly, “[i]n the absence of an affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he pleaded guilty” (People v Demkovich, 168 AD3d at 1222), the guilty plea, in my view, was invalid. I would therefore take corrective action in the interest of justice and reverse the judgment of conviction (see People v Drayton, 189 AD3d 1892, 1894 [2020]; People v Holmes, 162 AD3d 1117, 1118 [2018]; People v Schmitz, 159 AD3d 1222, 1223 [2018]; People v Aubain, 152 AD3d 868, 870 [2017]).
ORDERED that the judgment and order are affirmed.