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Defendant Files Appeal Requesting to Withdraw Plea in Criminal Case


In this criminal case, the defendant appealed from (1) a judgment of the Supreme Court, Queens County, rendered July 24, 1995, convicting him of attempted rape in the first degree and rape in the second degree, upon his plea of guilty, and imposing sentence, and (2) an amended judgment of the same court, also rendered July 24, 1995, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted burglary in the second degree. A Lawyer said that, by decision and order of this court dated November 24, 1997, the matter was remitted to the Supreme Court, Queens County, to hear and report on the defendant’s motion to withdraw his plea, and the appeal was held in abeyance in the interim. The Supreme Court has filed its report.

The issue in this case is whether defendant may withdraw his plea in the interest of justice.

The Court cited the provisions of CPL 210.40(1) which provides, in pertinent part: An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.

The Court said that, CPL 210.20(1)(i) thus, permits the defendant to move for dismissal in furtherance of justice pursuant to section 210.40 “after arraignment upon an indictment.” CPL 210.20(2) specifies, however, that “a motion pursuant to this section should be made within the period provided in section 255.20.” That period, as prescribed in CPL 255.20(1), must be “within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment”. Additionally, CPL 255.20(3) permits a court to entertain and decide any appropriate victim motion on its merits “at any time before the end of the trial,” but specifically requires such motions to be disposed of on the merits “at any time before sentence”. By requiring a court to fix a specific date for sentencing following conviction, C.P.L. 380.30(1) seeks not only to promote the efficient disposition of cases, but encompasses the Sixth Amendment right to a speedy trial to the extent that such right likewise embraces post-conviction proceedings. Prompt sentencing is an important goal of the criminal justice system in terms of fairness to both the public and a defendant.

Under the circumstances of this case, the defendant was not denied the meaningful representation of counsel, and the Supreme Court properly denied his motion to vacate his guilty plea. The defendant argues that the duration of the order of protection issued at the time of sentencing exceeded the maximum time limits of CPL 530.13(4) and failed to take into account jail-time credits. However, the defendant failed to preserve this argument for appellate review because he did not raise the issue at sentencing or move to amend the final order of protection on this ground, and the Court declines to review it in the exercise of our interest of justice jurisdiction.

Rape is a serious crime and no lay man can defend himself without the assistance of a competent counsel. If your are involved in a criminal case of rape or other sex crimes, you must ask for the help of a Queens Criminal Attorney and/or Queens Rape Attorney in order to properly defend your case. Without the help of these attorneys, you might lose your case. Call us at Stephen Bilkis and Associates for free consultation.

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