Appellate Division of the Supreme Court of New York, 1997

People v. Hernandez

Appellate Division of the Supreme Court of New York · Decided February 18, 1997

236 A.D.2d 557; 654 N.Y.S.2d 639; 1997 N.Y. App. Div. LEXIS 1318

Cases that cite this one

6 later published cases cite this decision.

People v. Anderson (Appellate Division of the Supreme Court of New York 1998)
People v. Cordes (Appellate Division of the Supreme Court of New York 2000)
People v. Allen (Appellate Division of the Supreme Court of New York 2000)
People v. Owen (Appellate Division of the Supreme Court of New York 1998)
People v. Rudenko (Appellate Division of the Supreme Court of New York 1997)
People v. Sanders (Appellate Division of the Supreme Court of New York 1997)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered February 21, 1995, convicting him of burglary in the third degree, criminal mischief in the fourth degree, and possession of burglar’s tools, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant’s application to withdraw his plea of guilty (see, CPL 220.60 [3]). The defendant knowingly and voluntarily pleaded guilty in the presence of competent counsel *558after the court had advised him of the consequences of his plea during a thorough plea allocution. The defendant’s bare assertion of innocence was flatly refuted by the record of the plea proceeding and does not warrant vacatur of the plea (see, People v Sider, 232 AD2d 666; People v Sears, 204 AD2d 578). Since the defendant’s basis for his application to withdraw his plea was facially without merit, no formal evidentiary hearing was necessary (see, People v Billings, 208 AD2d 941; People v Morris, 118 AD2d 595).

Furthermore, the court properly declined the defendant’s request to postpone sentencing until his former attorney from the Legal Aid Society returned since the defendant’s claim of innocence was clearly belied by the record (see, People v Johnson, 194 AD2d 804). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.

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