SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1228
KA 13-00522
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO,
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CURLIE GREEN, DEFENDANT-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered January 2, 2013. The judgment convicted
defendant, upon his plea of guilty, of rape in the first degree,
robbery in the second degree (three counts) and robbery in the third
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of rape in the first degree (Penal Law §
130.35 [1]), three counts of robbery in the second degree (§ 160.10
[2] [b]), and robbery in the third degree (§ 160.05). Contrary to
defendant’s contention, the record establishes that his waiver of the
right to appeal was made knowingly, voluntarily and intelligently (see
People v Lopez, 6 NY3d 248, 256). Defendant’s valid waiver of the
right to appeal encompasses his contentions that Supreme Court erred
in denying his motions to suppress the physical evidence seized from
his home and the identification evidence (see People v Kemp, 94 NY2d
831, 833; People v Williams, 36 NY2d 829, 830, cert denied 423 US 873;
People v Jenkins, 117 AD3d 1528, 1529, lv denied 23 NY3d 1063). The
waiver also encompasses his contention that the sentence is unduly
harsh and severe (see Lopez, 6 NY3d at 255). In any event, we
conclude that the contentions with respect to the suppression motions
and the sentence are without merit.
Defendant’s contention that the plea was not knowing and
voluntary survives his valid waiver of the right to appeal (see People
v Lawrence, 118 AD3d 1501, 1501), and defendant preserved that
contention for our review by moving to withdraw the plea (see People v
Lopez, 71 NY2d 662, 665). We nevertheless conclude that defendant’s
contention is belied by the record inasmuch as there is nothing in the
record to cast doubt on the voluntariness of the plea (see People v
-2- 1228
KA 13-00522
Knoxsah, 94 AD3d 1505, 1505). The record establishes that defendant
pleaded guilty voluntarily, that he had ample time to discuss the plea
with his attorney, and that he admitted the factual allegations of
each of the five counts of the indictment.
We reject defendant’s contention that the court abused its
discretion in denying his motion to withdraw his plea without
conducting a hearing. Defendant alleged that he was coerced by his
attorney to plead guilty to crimes of which he was innocent. “When a
defendant moves to withdraw a guilty plea, the nature and extent of
the fact-finding inquiry ‘rest[s] largely in the discretion of the
Judge to whom the motion is made’ and a hearing will be granted only
in rare instances” (People v Brown, 14 NY3d 113, 116, quoting People v
Tinsley, 35 NY2d 926, 927). Here, the court provided defendant with
ample opportunity to present his claims in support of his motion to
withdraw his plea (see People v Walker, 114 AD3d 1257, 1258, lv denied
23 NY3d 1044), and there was nothing in the record, with the exception
of defendant’s self-serving statements and his attorney’s assertions
made upon information and belief, that supported his allegation that
he was coerced into pleading guilty (cf. Brown, 14 NY3d at 117).
Entered: November 14, 2014 Frances E. Cafarell
Clerk of the Court