Published on:

Defendant Seeks to Withdraw his Plea Based on Duress


Defendant was indicted in three separate indictments by a Grand Jury charging him with two counts of assault in the second degree, escape in the second degree and resisting arrest; two counts of grand larceny in the third degree; and two counts of grand larceny in the second degree and one count of grand larceny in the third degree, respectively. Thereafter, a New York Criminal Lawyer said the People moved to permit defendant to withdraw his not guilty pleas to all three indictments and substitute therefor a plea of guilty to one count of grand larceny in the third degree with respect to the second indictment and one count of grand larceny in the second degree with respect to the third indictment, in full satisfaction of all three indictments and of a felony offense for which he had been arrested but not yet indicted.

On appeal defendant urges that the plea bargain was illegal because it encompassed dismissal of a felony complaint for which he had not yet been indicted. A New York Criminal Lawyer said the court ruled that while County Court had no authority to dismiss the felony complaint and did not purport to do so, the District Attorney had the discretion and authority to decline to continue prosecution of that offense. His agreement to do so as part of a negotiated plea is certainly legal.

Defendant next contends that his guilty plea to grand larceny in the second degree, a class D felony, permitted a maximum sentence of 3 1/2 to 7 years as a second felony offender. However, because the plea agreement provided for a sentence of 4 to 8 years in the event that defendant failed to make restitution of $11,000, defendant claims that his plea was illegal. We disagree. The Court viewed County Court’s action as an inadvertent misstatement. At the time of sentencing County Court properly sentenced defendant to a prison term of 3 1/2 to 7 years. It has long been the rule that a court has the inherent power to correct its own error in imposing sentence.

At sentencing, defendant moved to withdraw his guilty pleas based upon his innocence as well as fraud, mistake and extreme distress due to his wife’s ill health. Additionally, a New York Drug Possession Lawyer said that defendant moved for additional time to obtain new counsel because his attorney had not effectively represented him. Defendant contends that County Court erred in denying him a hearing concerning withdrawal of his pleas and his claim of ineffective assistance of counsel. The Court disagreed. The question of whether defendant should be permitted to withdraw his plea rests in the sound discretion of the trial court and a hearing will be granted only in rare instances. Defendant’s conclusory statements of coercion and duress did not require a hearing. Additionally, defendant’s belated protestation of innocence should not have resulted in the withdrawal of his plea or a hearing where he was afforded sufficient opportunity to state the basis for his withdrawal application. Defendant’s detailed account of the commission of his crimes without apparent hesitation and without protestation of innocence during the plea allocution presented an issue of his credibility which County Court could properly resolve against him without a hearing.

With regard to defendant’s claim of ineffective assistance of counsel at the time of sentencing and his motion for adjournment to retain new counsel, the court ruled that County Court properly denied that application. It is clear that defendant received an extremely advantageous plea bargain and there is nothing in the record to cast doubt on the apparent effectiveness of counsel. Furthermore, a New York Sex Crimes Lawyer said that the defendant had expressed satisfaction with his representation at the time of his pleas. Under such circumstances, the court has held that a claim of ineffective assistance will be rejected.

The Court stated that once the existence of a previous felony conviction has been proven beyond a reasonable doubt, the question of whether a foreign crime is equivalent to a New York felony must be determined by the court, as a matter of law, by comparing the elements of the foreign statute with an analogous Penal Law felony.

Stephen Bilkis and Associates with its New York Grand Larceny Lawyers can assist you throughout the litigation of your case. It has offices within New York Metropolitan area, including Corona, New York.

Contact Information