Pursuant to a plea agreement entered into on May 22, 2006, the within Defendant, Marcelino Hernandez, was convicted of Robbery in the Second Degree (Penal Law  160.10). He was thereafter sentenced to a definite term of ten years incarceration, and is presently incarcerated.

Defendant now moves, pursuant to Criminal Procedural Law  220.60(3), to withdraw his plea of guilty on the grounds that: (1) his plea was without full knowledge of the consequences thereof; (2) the plea was the result of coercion on the part of his attorney, thus it was not voluntary; (3) he was unaware that he had a meritorious defense to the offenses charged; and (4) he was not guilty of the offense to which he pled, thus the plea was not knowing and intelligent. The motion is denied.

In the course of his plea allocution, Defendant was duly sworn and agreed with his attorney's statement that he wished to withdraw his earlier plea of "not guilty" and plead "guilty" to the abovementioned charge in satisfaction of the indictment against him. He indicated that: he was 40 years-old at the time of his offense and 42 years-old at the time of his plea; he read, wrote and was conversant in the English language; at the time of his plea he had never been under the care of a psychiatrist or psychologist; he was, in general, of sound physical and mental health; he had not taken drugs or alcohol during the preceding twenty-four hours. (Tr. 13-15). [*2]

Defendant then stated that he knew that he had the right to go to trial, whereupon he would be represented by counsel, and, at trial, his attorney would have the opportunity to cross-examine any of the witnesses the People chose to bring forth against him. Defendant further indicated that he knew he would be tried by a jury of twelve citizens, drawn from this County, and that he and his counsel would participate in the selection of those jurors, and that all twelve would have to be unanimous in agreement beyond a reasonable doubt that he committed each and every element of each crime charged against him in order to for him be found guilty of any particular crime. (Tr. 15-16).

The People then indicated that had the case proceeded to trial, they were prepared to prove beyond a reasonable doubt that on or about November 2, 2004, in the County of Bronx, Defendant entered a gas station with a gun (later determined to be an imitation pistol), put said gun against the back of one Dara Singh, demanded and received money from Mr. Singh and removed cigarettes from Mr. Singh's pockets, all without permission or authority. Defendant then fled the scene, displaying said gun to two police officers who apprehended him shortly thereafter. (Tr. 17-19).

The Court inquired of Defendant if he displayed to Mr. Singh what appeared to be a pistol; if he forcible took money from Mr. Singh; if he took cigarettes from Mr. Singh; and if he later displayed said pistol to the police. Defendant answered each of these questions by stating "Yes, Sir" (Tr. 20-22).

Defendant thereupon agreed to waive his right to appeal as a condition of his being offered the opportunity to enter the within plea. The Court noted for the record that it was "satisfied that the plea, number one, is strategically sound; number two, adequately counseled; number three, interposed by this defendant, Marcelino Hernandez, only after careful balancing of the alternatives open to him and in consultation with his counsel." (Tr. 24-25).

Defendant further stated that he was entering his guilty plea freely and voluntarily, after thinking about it, after discussing it with his attorney, deciding that it was in his best interests to dispose of this case against him in light of the circumstances, and because he was guilty of the crime to which he had pled. (Tr. 25-26). Notably, Defendant had been allotted the lunch hour to have additional time to think over the terms and conditions of the plea, as well as to discuss it further with his counsel, prior to the within recitation.

In deciding a CPL  220.60(3) motion to withdraw a guilty plea, it is well settled that "[t]rial judges are vested with discretion...because they are best able to determine whether a plea is entered voluntarily, knowingly and intelligently" (See People v. Alexander, 97 NY2d 482, 485 [2005]), and that such motions "will not be granted merely for the asking...The interest of finality requires no less." Alexander, id. See also People v. Frederick, 45 NY2d 520, 525 (1978) ("Only rigorous adherence by the courts to a policy of affording guilty pleas a great measure of finality will immunize plea negotiations from indiscriminate potshots."). In addition, in determining such motions "the Judge to whom the motion to vacate is addressed should be entitled to rely on the record before him." People v. Ramos, 63 NY2d 640, 642-43 (1984).

It is likewise well settled that the "test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice amongst the alternative courses of [*3]action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203, 208 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970). See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); People v. McDonald, 1 NY3d 109 (2003). However, "a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant." People v. Ford, 86 NY2d 397, 402-03 (1995); People v. Moisset, 76 NY2d 909, 910-11 (1990) ("trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which Defendant waves a plethora of rights"). Indeed, as more fully explained in People v. Fiumefreddo, 82 NY2d 536, 543-44 (1993):

There must be an affirmative showing on the record that the defendant waived her constitutional privilege against self-incrimination and her rights to a jury trial and to be confronted by witnesses...This Court has consistently rejected a formalistic approach to guilty pleas, preferring instead to leave the ascertainment of whether the defendant has entered the plea voluntarily, knowingly and intelligently to the trial court's "sound discretion exercised in cases on an individual basis" (People v. Nixon, 21 NY2d 338, 355 [1967], cert denied, sub nom., Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709 [1969]). Thus, we have said repeatedly that there is no requirement for a uniform mandatory catechism of pleading defendants'" (People v. Harris, 61 NY2d 9, 16 [1983], [quoting Nixon, supra , at 353]).

See also Harris, id. at 16-17 ("[T]his court has never held...[that] a guilty plea is invalid solely because the Trial Judge failed to specifically enumerate all of the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea...[A] rigorous and detailed colloquy...would be unnecessary formalism. The seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the plea bargain,' and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion."); People v. Guerrone, 208 AD2d 383, 383-84 (1st Dept. 1994) ("Nor is there merit to defendant's claim that his guilty plea does not satisfy the knowing, voluntary and intelligent standard because...the court failed specifically to state that if he were to got to trial, the People would have to prove his guilt beyond a reasonable doubt and that a guilty verdict would have to be unanimous...[T]he precise contours of the plea are left to the sound discretion of the court...[T]he totality of the circumstances confirm that defendant ...was fully aware of his rights and the consequences of his guilty plea...[T]he court was sufficiently familiar with this defendant and the facts of this case to summarily dispose defendant's last-ditch effort to avoid detention."), lv. denied, 89 NY2d 1011 (1994).

Furthermore, in Alford, supra , at 400 U.S. 31-37, 91 S.Ct. 164-67, 27 L.Ed.2d at 168-71, the Supreme Court opined that "while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty...Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when ...a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." See also People v. Flores, 237 AD2d [*4]128, 129 (1st Dept. 1997) ("factual issues are waived by...guilty plea"), lv. denied, 90 NY2d 857 (1997).

The case at bar is similar to People v. Victor, 262 AD2d 872, 873-74 (1st Dept. 1999), lv. denied, 94 NY2d 830 (1999), in which the First Department held that:

[D]efendant entered a knowing, intelligent and voluntary guilty plea and waiver of the right to appeal...The transcript of the plea proceedings discloses that defendant, while represented by counsel, was advised of his rights and the consequences of pleading guilty and communicated his understanding to the court. Defendant further indicated that he had not been threatened, coerced or pressured in any way into entering into the plea, nor was he under the influence of alcohol, controlled substances or medication...Inasmuch as the plea and waiver were knowingly, voluntarily and intelligently made, the defendant is precluded from challenging the sufficiency of the allocution...Even if we addressed his claims...[i]n pleading guilty,...defendant was not required to recite all of the elements of the crime nor was...[the] Court required to elicit from defendant a narrative of the events.

Here, after agreeing with his attorney's statement that he wished to withdraw his plea of "not guilty" and plead "guilty" to Robbery in the Second Degree in satisfaction of the entire indictment, Defendant a forty-two year old individual acknowledged that he was conversant in the English language and had no physical or mental impediments to his plea nor any alcohol or controlled substance use that would affect his plea. Defendant further stated that he understood that he was waiving his right to go to trial and that, by doing so, was giving up his rights to participate in jury selection and confront any witnesses brought against him. Defendant also indicated that he understood that his plea had the same effect as being found guilty by a jury and that, if he went to trial, he could not be found guilty unless his guilt of each and every element of a particular crime was proven to a unanimous jury beyond a reasonable doubt. Defendant further noted, after discussing it with his attorney, that he considered it in his best interests to dispose of the case at hand in light of the circumstances, and because he was, in fact, guilty of the charge to which he pled. The Court noted for the record that it recognized one of the reasons for Defendant pleading guilty was his fear of the possibility of facing more serious punishment and/or a longer term of imprisonment if he was unsuccessful at trial. Then, after indicating that he understood a definite term of ten year incarceration as his sentence, Defendant waived, as a condition thereof, his right to appeal .

As such, "[n]othing in this record of the plea allocution called into question the voluntary, knowing and intelligent nature of the defendant's bargained-for plea." People v. Seeber,4 NY3d 780, 780 (2005). Indeed, "[t]he court was able firsthand to assess whether defendant was alert and knowledgeable enough to plead guilty voluntarily. Under oath defendant told the court that, after consulting with counsel, he understood the nature of the proceeding and that his guilty plea entailed a wavier of various rights...There was not the slightest indication that Defendant was uninformed, confused or incompetent." Alexander, supra , at 486. People v. Rivera, 2006 NY Misc. LEXIS 2247, citing People v. Foster, 19 NY2d 150, 154 (1967) ("Therefore, the plea should be sustained on the ground that it was sought by defendant and freely taken as a part of a bargain which was struck for the defendant's benefit.") See also Frederick, supra , at 525-28 ("[T]he court took painstaking measures to insure that the defendant fully understood the [*5]consequences of his guilty plea...[T]he trial court engaged in tedious questioning of the defendant to insure that he fully comprehended the consequences of his guilty plea."); People v. Contreras, 219 AD2d 495 (1st Dept. 1995) ("motion to withdraw the plea is refuted by the plea minutes, which show that the defendant pleaded guilty, after an extensive allocution, because he was guilty and wanted to avoid the risk of a longer sentence") lv. denied, 87 NY2d 845 (1995); People v. Hannon, 209 AD2d 319, 321 (1st Dept. 1994) ("Defendant knowingly acknowledged his desire to plead guilty;...acknowledged and waived his right to a trial by jury, where the People would have the burden of proving his guilt; and acknowledged and waived his right to question the People's witnesses, his right to call witnesses, and his right to testify. Defendant further stated that he was pleading guilty voluntarily, that no one had forced him to enter the plea.") lv. denied, 85 NY2d 862 (1995). "[N]or is there any credible indication that Defendant misapprehended the nature of the charges or the consequences of the plea." See People v. Muncey, 214 AD2d 432, 433 (1st Dept. 2005), lv. denied, 86 NY2d 783 (1995); People v. Decker, 32 AD3d 1079, 1080 (3rd Dept. 2006) ("[The] Court thoroughly informed the defendant of the rights he would be relinquishing by pleading guilty and defendant acknowledged his understanding the same. Defendant also admitted committing acts constituting the crime in question and stated, on the record, that he was pleading guilty of his own volition."). See also People v. Kearney, 14 AD3d 938 (3rd Dept. 2005), lv. denied, 4 NY3d 854 (2005).

Respecting Defendant's claim that he was coerced by his counsel to accept the plea, the record fails to provide any indication or support for same. Even were the record to have indicated otherwise, the facts and circumstances of the instant case would suggest a sound piece of advice and represents a viable defense strategy within the range of reasonable professional judgement. See Strickland v. Washington, 466 U.S. 668 (1984).

A claim that a "plea of guilty was secured by coercion and intimidation" is to be denied without a hearing where "defendant failed to submit an affidavit from the attorney who represented him at plea and sentence or offer an explanation of his failure to do so." People v. Morales, 58 NY2d 1008, 1009 (1983). Indeed, in People v. Dixon, 29 NY2d 55, 56 (1971), a case in which the defendant claimed that he was innocent and only pled guilty because his attorney "advised him that he had no chance of proving his innocence" the Court of Appeals held that as "[n]o factual matters were presented in support of these assertions...[and] the court has before it only the unsupported allegations of the defendant," the defendant failed to establish that the plea "was not made voluntarily following consultation with his attorney." See also People v. Lowrance, 41 NY2d 303 (1977).

In People v. Bowden, 186 AD2d 362 (1st Dept. 1992), a case analogous to that at bar, the First Department held that defense counsel informing his client "that it would be stupid' to take his case to trial," was blunt advice and not an attempt to "coerce [him]...into pleading guilty." See also People v. Cross, 262 AD2d 223, 224 (1st Dept. 1999), ("defendant's routine attorney-coercion claim amounted to nothing more than the attorney's fulfillment if his obligation to render appropriate advice concerning the strength the prosecution's case"), lv. denied, 94 NY2d 902 (2000); People v. Branton, 826 NYS2d 489, 491 {35 AD3d 1035} (3rd Dept. 2006) ("[The] trial court did not err in denying defendant's motion to withdraw guilty pleas under circumstances in which [the] record did not contain evidence calling into question the voluntariness of the pleas or defendant's innocence. Defendant's pleas were not coerced or [*6]rendered involuntary based on counsel's urging that defendant accept the plea agreements."). See also People v. Mann 32 AD3d 865, 866 (2nd Dept. 2006), where the Court stated, "the mere fact that defense counsel may have advised [defendant] as to the risks of trial, including the possible maximum sentence if he was convicted, is insufficient to establish ineffective assistance of counsel or coercion."

Therefore, this claim is denied without hearing pursuant to CPL  440.30 (4) (b) and (d), as the motion papers do not contain any sworn allegations tending to substantiate any essential facts, and the allegations of fact, advanced solely by Defendant, are contradicted by the record, unsupported by other affidavits or evidence;there is no reasonable possibility that they are true. See Fiumefreddo, supra at 548 ("[ D]efendant's claim of ...coercion did not necessitate a hearing...[H]er contention...was little more than a perfunctory statement...[that] the plea was under duress."); People v. Nin, 276 AD2d 350, 351 (1st Dept. 2000) ("conclusory assertion [of]... coercion...[is] belied by the record and did not require a hearing"), lv. denied, 96 NY2d 732 (2001); People v. Sepulveda, 198 AD2d 66 (1st Dept. 1993) ("the court's review of defendant's written motion afforded defendant a reasonable opportunity to present his views"), lv. denied, 82 NY2d 930 (1994).

To raise a failure of allocution claim herein is illusory. Defendant, on this record, clearly agreed with his attorney that he wished to withdraw his plea of "not guilty" and enter a plea of "guilty" to Robbery in the Second Degree; he stated that one of the reasons he was pleading guilty to this charge was because he was, in fact, guilty. Defendant did not controvert the elements of the crime as contained in the People's statement of facts, namely, that he placed what appeared to be a pistol to Mr. Singh's back, requested and took money and cigarettes from Mr. Singh, and acknowledged he took said items using force and without permission or authority. He further stated he displayed said pistol to police officers before being apprehended. See People v. Atterbury, 258 AD2d 304, 305 (1st Dept. 1999) ("we find that in his factual allocution he unequivocally admitted his complicity...and that the allocution did not cast any doubt on his guilt."), lv. denied, 93 NY2d 922 (1999); People v. Jackson, 224 AD2d 330 (1st Dept. 1996) ("Review of the plea allocution demonstrates that defendant knowingly and voluntarily admitted to the elements of the crime of which he was convicted.").For all of the foregoing, this challenge to Defendant's plea must fail.

ORDERED, that Defendant's motion to withdraw his plea of guilty is denied.

This constitutes the opinion and decision of the Court.

Dated: Bronx, New York

February 8, 2007__________________________ [*7]

DOMINIC R. Massaro,

Justice of the Supreme Court