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discussed
Cited as authority (rule)
People v. Miller
As long as the court permits the defendant a reasonable opportunity to present his or her contentions, a hearing is not required on the motion unless the record presents a genuine issue of fact with respect to the voluntariness of the plea ( see People v Khan , 139 AD3d 1261, 1262 [2016], lvs [*2]denied 28 NY3d 932, 934 [2016]; People v Pittman , 104 AD3d 1027, 1028 [2013], lvs denied 21 NY3d 1008 [2013]).
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People v. Davis
Contrary to defendant's further contention, despite some inconsistencies, the officer's testimony was not so "incredible or improbable as to warrant disturbing the . . . court's determination of credibility," which is entitled to great deference ( People v Addison , 199 AD3d 1321, 1322 [4th Dept 2021] [internal quotation marks omitted]; see People v Layou , 134 AD3d 1510 , 1511 [4th Dept 2015], lv denied 27 NY3d 1070 [2016], reconsideration denied 28 NY3d 932 [2016]; see generally People v Prochilo , 41 NY2d 759 , 761 [1977]).
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People v. Vittengl
"To the extent that defendant's motion to vacate is predicated upon his claim of actual innocence, 'we note that vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt[y] after trial and defendant's plea of guilty therefore forecloses relief upon this ground'" ( People v Lamb , 162 AD3d 1395 , 1397 [2018], lv denied 32 NY3d 1112 [2018], quoting People v DePerno , 148 AD3d 1463, 1464 [2017] [emphasis and brackets omitted], lv denied 29 NY3d 1030 [2017]; accord People v Crampton , 201 AD3d 1020, 1024 [2022]; see People v Larock , 139 …
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People v. Brisman
Thus, we discern "no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice" ( People v Planty , 155 AD3d 1130, 1135 [2017], lv denied 30 NY3d 1118 [2018]; see People v Jones , 139 AD3d 1189, 1191 [2016], lv denied 28 NY3d 932 [2016]).
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People v. Sanders
When "the People proceed under the theory of constructive possession, the proof must establish that a defendant exercised dominion and control over the property or the person who actually possessed the property" ( People v Palin , 158 AD3d 936 , 938 [2018] [internal quotation marks, brackets and citation omitted], lv denied 31 NY3d 1016 [2018]; see People v Leduc , 140 AD3d 1305, 1306 [2016], lv denied 28 NY3d 932 [2016]).
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People v. Williams
A second set of statements came from the acquaintance whose apartment he retreated to after the shooting — a man who had first identified defendant as the shooter before refusing to testify when called by the People at trial — indicating that his initial account was incorrect and that he did not see defendant possess a gun or use it to shoot the victim. [FN1] The acquaintance's recantation of his prior story is an "extremely unreliable form of evidence" ( People v Tucker , 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007]; accord People v Larock , 139 AD3d 1241, 1245 [2016], lv denied…
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Cited "see"
People v. Hatch
Further, "inasmuch as defendant did not make any statements during the course of the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement is inapplicable" ( People v White , 156 AD3d 1249 , 1250 [2017], lv denied 31 NY3d 988 [2018]; see People v Larock , 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016]; People v Cruz , 104 AD3d 1022, 1023 [2013]).
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People v. Levielle
Although the plea colloquy reflects that defendant purportedly executed a written waiver of appeal and "file[d the waiver] with the clerk of the [c]ourt," "the record does not reflect that he read it, discussed it with counsel or understood it, and it is not in the record on appeal" ( People v Wright , 149 AD3d 1417, 1418 [2017]; see People v Larock , 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016]).
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People v. Strauss
Nevertheless, “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]; see People v Leduc, 140 AD3d 1305, 1306 [2016], lv denied 28 NY3d 932 [2016]).
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People v. Brown
“In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v Ford, 86 NY2d 397, 404 [1995]; see People v Khan, 139 AD3d 1261, 1264 [2016], lv denied 28 NY3d 932 [2016]).
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People v. Slaughter
The corroborating evidence, however, need not prove that the defendant committed the charged crime; rather “[i]t is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the [factfinder] that the accomplice is telling the truth” (People v Reome, 15 NY3d 188, 192 [2010]; accord People v Sage, 23 NY3d 16, 27 [2014]; see People v Leduc, 140 AD3d 1305, 1306 [2016], lv denied 28 NY3d 932 [2016]).
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People v. Howe
Defendant’s reliance on Wells’ recantation did not constitute newly discovered evidence because it was known prior to his guilty plea and, more importantly, because vacatur of a judgment of conviction on this ground is only available where there has been a “verdict . . . after [a] trial” (CPL 440.10 [1] [g]; see People v Larock, 139 AD3d 1241, 1243 [2016], lv denied 28 NY3d 932 [2016]). 2 .
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People v. Brockway
Even assuming, arguendo, that defendant’s contention survived the plea, we conclude that defendant has “failed to demonstrate [his] factual innocence” (People v Caldavado, 26 NY3d 1034, 1037 [2015]; see People v Larock, 139 AD3d 1241, 1244 [2016], lv denied 28 NY3d 932 [2016]).
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People v. Brockway
Even assuming, arguendo, that defendant’s contention survived the plea, we conclude that defendant has “failed to demonstrate [his] factual innocence” (People v Caldavado, 26 NY3d 1034, 1037 [2015]; see People v Larock, 139 AD3d 1241, 1244 [2016], lv denied 28 NY3d 932 [2016]).
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Cited "see"
BROCKWAY, STEVEN P., PEOPLE v
Even assuming, arguendo, that defendant’s contention survived the plea, we conclude that defendant has “failed to demonstrate [his] factual innocence” (People v Caldavado, 26 NY3d 1034, 1037 ; see People v Larock, 139 AD3d 1241, 1244 , lv denied 28 NY3d 932 ).
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People v. Daniels
We reject that contention. “ ‘Great weight must be accorded to the determination of the suppression court because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous or unsupported by the hearing evidence’ ” (People v Johnson, 138 AD3d 1454, 1454 [2016], lv denied 28 NY3d 931 [2016]; see People v Layou, 134 AD3d 1510 , 1511 [2015], lv denied 27 NY3d 1070 [2016], reconsidera tion denied 28 NY3d 932 [2016]).
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People v. Daniels
We reject that contention. “ ‘Great weight must be accorded to the determination of the suppression court because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous or unsupported by the hearing evidence’ ” (People v Johnson, 138 AD3d 1454, 1454 [2016], lv denied 28 NY3d 931 [2016]; see People v Layou, 134 AD3d 1510 , 1511 [2015], lv denied 27 NY3d 1070 [2016], reconsidera tion denied 28 NY3d 932 [2016]).
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DANIELS, MARSHALL, PEOPLE v
We reject that contention. “ ‘Great weight must be accorded to the determination of the suppression court because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous or unsupported by the hearing evidence’ ” (People v Johnson, 138 AD3d 1454, 1454 , lv denied 28 NY3d 931 ; see People v Layou, 134 AD3d 1510, 1511 , lv denied 27 NY3d 1070 , reconsideration denied 28 NY3d 932 ).
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People v. Darrell
Initially, defendant’s oral waiver of appeal, which was unaccompanied by a written waiver, is not valid, as County Court failed to adequately convey that “the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016]).
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Cited "see, e.g."
People v. Wyatt
In the event that defendant prevails at the suppression hearing, the judgment is reversed and the indictment is dismissed and, if the People prevail, then the judgment "should be amended to reflect that result" ( Clermont , 22 NY3d at 932 ; see Evans , 243 AD3d at 1339; People v Layou , 114 AD3d 1195, 1198-1199 [4th Dept 2014]; see also People v Layou , 134 AD3d 1510 , 1511 [4th Dept 2015], lv denied 27 NY3d 1070 [2016], reconsideration denied 28 NY3d 932 [2016]).
Retrieving the full opinion text from the archive…
People
v.
Jones (Justin)
v.
Jones (Justin)
Published
3d Dept: 139 AD3d 1189 (Chemung)
denied 8/19/16 (Garcia, J.)