People v Drake
Annotate this CaseDecided on August 1, 2005
Mount Vernon City Court
The People of the State of New York,
against
Theron Drake, Defendant.
05-0060
Westchester County District Attorney's Office
Mount Vernon branch
Kenneth Saltzman, Esq.
Attorney for Defendant
22 West First Street, Suite 622
Mount Vernon, New York 10550
Adam Seiden, J.
The defendant, having pleaded guilty to the charge of criminal contempt in the second degree in this Court on February 7, 2005, moves to withdraw his plea of guilty prior to sentence. The People oppose the motion.
The established rule is that a guilty plea will be upheld as valid if it was entered voluntarily, knowingly and intelligently (People v Fiumefreddo, 82 NY2d 536 (1993)). Whether the defendant has entered the plea voluntarily, knowingly and intelligently is committed to the court's sound discretion exercised in cases on an individual basis (Id. citing People v Nixon, 21 NY2d 338, 355; People v Scialphi, 178 AD2d 569 (1991)).
The defendant seeks to withdraw his plea of guilty claiming that his former attorney failed to inform him that by pleading guilty to this charge, the Division of Parole would be notified that he had committed a violent crime, which would impact on his parole time. He also contends that he would not have pleaded guilty if he knew the complainant was not actually present in court for the felony hearing, and that his former attorney failed to inform him of that as well.
The People oppose the motion, arguing that there never was an agreement by the People to withhold information regarding defendant's plea from the Division of Parole. In any event, the People argue that the Division of Parole already had information that defendant was charged with a violent offense at the time of the plea, as indicated on the Supplementary Violation of Release Report. Further, the People assert that the complainant was in fact in court for the felony hearing, but was kept in a separate area in the District Attorney's office due to her fear of the defendant. The People contend that at his plea allocution, the defendant admitted his guilt and acknowledged his understanding of the Misdemeanor Waiver of Rights form, and that he should not be permitted to now withdraw his plea.
The Court finds that the defendant's claim of ineffective assistance of counsel is belied by the circumstances of this case. A revocation of parole is not a condition imposed by the court, but is automatic and is implemented by the Department of Parole in separate proceedings (see 9 N.Y.C.R.R. 8004.3). Therefore, the revocation or other alteration of parole status is a collateral consequence of the defendant's plea of guilty. [*2]Thus, the failure to advise the defendant of a potential alteration in his parole status is not a ground for withdrawal of a plea of guilty (People v Tinort, 5 Misc 3d 238 (Sup. Ct, NY Co. 2004). The record also indicates that no promise was ever made to the defendant that the violent circumstances of this charge would be withheld from the Division of Parole.
In addition, contrary to the defendant's claim, the People state that the complainant was in fact present and prepared to testify against the defendant at the felony hearing.
The Court finds that the defendant was represented at all times by competent counsel, and voluntarily signed a Misdemeanor Waiver of Rights form, which his counsel indicated to the Court was explained to him and that he understood. The defendant's motion to withdraw his plea of guilty is therefore denied (People v Ricketts, 16 AD3d 438 (2d Dept 2005)).
This constitutes the Decision and Order of this Court.
Dated:August 1, 2005
Mount Vernon, New York
___________________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
To:
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
