People v Hick (Simon)
Annotate this CaseDecided on October 21, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., TANENBAUM and LaCAVA, JJ
2008-1709 S CR.
The People of the State of New York, Respondent,
against
Simon J. Hick, Appellant.
Appeal from a judgment of the District Court of Suffolk County, First District (Stephen M.
Behar, J.), rendered August 21, 2008. The judgment convicted defendant, upon his plea of guilty,
of assault in the third degree.
ORDERED that the judgment of conviction is affirmed.
The People charged defendant with assault in the third degree (Penal Law
§ 120.00 [2]) based on the complaint of defendant's son, which alleged that defendant
had thrown the complainant from a porch onto the ground, inflicting a broken bone and a
dislocated joint, which required surgery to repair. With the assistance of counsel, defendant
entered into a negotiated plea agreement which, among other matters, included the District
Court's commitment to sentence defendant to 120 days' incarceration. In the course of his plea,
defendant admitted his guilt and that the offense occurred as recounted by his son in the
supporting deposition. Prior to sentencing, defendant moved to withdraw his plea in reliance
upon a new affidavit by his son, which recanted so much of his original account of the incident as
imposed responsibility for the injuries on defendant's culpable conduct. The son did not repudiate
his earlier assertion that an altercation with defendant had occurred at the time and place alleged,
but asserted only that he was the initial aggressor, evidently to create for defendant a factual basis
for a justification defense or to establish the absence of an intent to injure his son. The son also
stated that he had filed his complaint only to obtain assistance from the Crime Victim's Board to
satisfy his medical bills, and that, some time before, he had informed the prosecutor that he
wished to discontinue the prosecution. The [*2]District Court
denied the motion, and defendant was sentenced according to the terms of his plea bargain.
On appeal, defendant contends that the motion to withdraw his plea should have been granted, that the complainant's communication to the prosecutor amounted to undisclosed Brady material, and that the sentence was unduly harsh and excessive. For the reasons that follow, we reject these contentions and affirm the judgment of conviction.
"Trial judges are vested with discretion in deciding plea withdrawal motions because they are best able to determine whether a plea is entered voluntarily, knowingly and intelligently" (People v Alexander, 97 NY2d 482, 485 [2002]). In the course of the plea proceedings, defendant, appearing with counsel, stated that his counsel had explained to him the nature and consequences of the plea, including the rights surrendered thereby, that his plea was voluntary, that he understood that he was pleading guilty, and that he did so because he was, in fact, guilty of the conduct alleged in the accusatory instrument. Nothing occurred to raise doubt as to defendant's understanding of the facts alleged to constitute the offense and the truth of defendant's admission that he did, in fact, engage in the conduct alleged. Defendant's background is relevant to the issue of his understanding of the proceedings. In the past 30 years, defendant has been arrested numerous times for a variety of offenses, many of which resulted in a guilty plea. "[S]chooled in the nature of criminal proceedings" (People v Frederick, 45 NY2d 520, 525 [1978]), defendant is very familiar with plea bargains and their consequences (see People v Alexander, 97 NY2d at 486; People v Griffin, 195 AD2d 766, 767 [1993]). In view of the foregoing, we find no infirmity with respect to the plea-bargaining process, the plea bargain's terms or the entry of the plea itself (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
Defendant argues that the plea was entered in ignorance of his son's desire to terminate the prosecution, which desire his son communicated to the prosecutor after the plea was entered, and that the recantation affidavit established multiple defenses to the charge. "Recantation evidence is inherently unreliable and insufficient, alone, to justify setting aside a conviction" (People v Mortensen, 60 AD3d 971, 972 [2009]; see People v Shilitano, 218 NY 161, 170 [1916]), particularly where, as here, the defendant admits his guilt under oath during the plea proceeding (People v Olaya, 1 AD3d 383, 384 [2003]). This is not a case where a defendant became aware of facts subsequent to his plea which rendered the plea less than knowing and intelligent. If the complainant's recantation statements are true, the facts asserted therein were necessarily known to defendant from the outset, the only matter unknown to defendant being the complainant's willingness to state them. Courts have recognized the "unfortunate pattern" of victims' reluctance to pursue charges in cases of domestic violence and that "[i]t is regrettable enough that this pattern exists, let alone that it should be used in support of a motion to withdraw a guilty plea" (Alexander, 97 NY2d at 487 & n 4).
We find no grounds to disturb the sentence. A defendant who received the sentence for which he or she bargained "has no cause" to complain on appeal that it is unduly harsh or excessive (People v Cooper, 17 AD3d 380 [2005]; People v Isaac, 282 AD2d 690 [2001]; see also People v Fair, 33 AD3d 558, 558 [2006]). In this case, there are no grounds to modify downward the 120-day sentence. The facts underlying this charge involved an act of violence by a father against his son. Defendant's criminal history is lengthy and violence-prone, and it is clear that the several terms of incarceration and probation defendant has previously served have [*3]had little or no rehabilitative or deterrent effect (People v Suitte, 90 AD2d 80, 87 [1982]). Thus, the interests served by this sentence, as stated by the sentencing court, of vindicating the public's right to a peaceful social order and of imposing retribution, are appropriate sentencing considerations (id.).
We have considered defendant's remaining claim and find it to be without merit (People v Philips, 30 AD3d 621, 621 [2006]; see also People v Doshi, 93 NY2d 499, 506 [1999]).
Accordingly, the judgment of conviction is affirmed.
Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: October 21, 2010
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