People v Albanese (Stephen)

[*1] People v Albanese (Stephen) 2007 NY Slip Op 51212(U) [16 Misc 3d 126(A)] Decided on June 11, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LaCAVA and EMERSON, JJ
2006-122 W CR.

The People of the State of New York, Respondent,

against

Stephen Albanese, Appellant.

Appeal from an amended judgment of the City Court of Peekskill, Westchester County (William L. Maher, J.), rendered December 7, 2005. The amended judgment revoked a sentence of conditional discharge previously imposed by the same court, upon a finding that defendant violated a condition thereof, and imposed a sentence of one year's imprisonment upon his previous conviction of petit larceny.

Amended judgment of conviction affirmed.

Defendant pleaded guilty to petit larceny and was sentenced to a conditional discharge. When defendant failed to complete a program, his sentence was revoked and an amended judgment rendered resentencing him to a one-year term of imprisonment. During the resentencing proceeding, defendant, while represented by counsel, moved to withdraw his guilty plea. The defendant was afforded a reasonable opportunity to present his contentions arguing that he was under the influence of drugs when he pleaded guilty, and that "[n]o one guided" him at the time of his plea. The court denied defendant's motion to withdraw his plea. On appeal, defendant contends that he was entitled to a hearing before the court determined his motion.

Only in rare instances will an evidentiary hearing be warranted to determine such a motion (see People v Tinsley, 35 NY2d 926, 927 [1974]). In this case, the court properly exercised its discretion in denying defendant's motion without a hearing since he was afforded a reasonable opportunity to present his contentions (see id.). Defendant's assertions that he was [*2]under the influence of drugs at the time of his plea are unsupported and contradicted by his sworn plea allocution (see People v Hawley, 305 AD2d 167 [2003]; People v Braun, 133 AD2d 702 [1987]). Defendant's argument that he was denied effective assistance of counsel because "no one guided" him during the proceedings is belied by his sworn statement that he reviewed the rights he was waiving with counsel (see People v Grimes, 35 AD3d 882 [2006]; People v Farley, 34 AD3d 1229 [2006]). The contention, raised on appeal for the first time, that he was denied effective assistance of counsel because his attorney knew that he was under the influence of drugs at the time he pleaded guilty, is dehors the record and is not reviewable on direct appeal (see People v Love, 57 NY2d 998, 1000 [1982]; People v
Ault, 308 AD2d 594 [2003]). Accordingly, the amended judgment convicting defendant of petit larceny is affirmed.

Rudolph, P.J., LaCava and Emerson, JJ., concur.
Decision Date: June 11, 2007