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Moving to Withdraw Guilty Plea
by Gary Muldoon
Muldoon & Getz
144 Exchange Blvd
Rochester, NY 14614
(585) 262-5130

After pleading guilty, a defendant may move to withdraw the plea. CPL 220.60(3). But withdrawing a guilty plea cannot be had for the asking, and several factors are considered. In bringing such a motion, the defendant is usually facing an uphill battle.

Judicial discretion to grant withdrawal

Where the defendant simply wishes to withdraw the plea because of second thoughts, whether to grant the application is within the court’s sound discretion. People v Lisbon, 187 AD2d 457 (2d Dept 1992). Withdrawal of a guilty plea is not readily granted. People v Alexander, 97 NY2d 482 (2002). In the main, withdrawal of a guilty plea is not allowed, absent some evidence of ignorance, fraud or mistake in the inducement.

A hearing on a motion to withdraw a guilty plea is infrequently granted. See People v D’Adamo, 281 AD2d 751 (3d Dept 2001); People v Stephens, 291 AD2d 841 (4th Dept 2002). Though, it is error for the court to summarily deny a motion without a hearing where the defendant's motion raises a geniune issue of fact. See People v Brown, 14 NY3d 113 (2010) (defendant raised a issue of fact on whether his plea was induced under duress when the trial judge granted the defendant a furlough as part of plea in order to see his sick son in the hospital).

Judicial coercion

Where the conditions under which the defendant pleaded guilty did not, in fact, permit a knowing and voluntary decision, withdrawal may be permitted. See People v Britt, 200 AD2d 401 (1st Dept 1994). A judge may not threaten to impose a higher sentence for going to trial in order to induce a guilty plea. People v Flinn, 60 AD3d 1304 (4th Dept 2009); People v Fanini, 222 AD2d 1111 (4th Dept 1995). Threatening to increase bail or remand defendant unless a guilty plea is entered renders the plea invalid. People v Grant, 873 NYS2d  (2d Dept 2009).

Ineffective Assistance of Counsel

A motion to withdraw may be based on ineffective assistance of counsel. Withdrawal may be granted if defense counsel failed to inform the defendant regarding the particular effects of the plea. Normally, though, failure to advise of "collateral consequences" will not warrant withdrawal of the plea. People v Ford, 86 NY2d 397 (1995). Where counsel gives affirmatively incorrect advice and the defendant would not have pleaded guilty, withdrawal (or vacatur of conviction) may be granted. Defendant must show a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty. People v McDonald, 1 NY3d 109 (2003).

Assertion of innocence

Generalized assertions of innocence do not suffice. People v Haffiz, 19 NY3d 883 (2012); People v Burroughs, 224 AD2d 1034 (4th Dept 1996). With an Alford plea, a claim of innocence forms no basis for withdrawal. People v Alexander, 97 NY2d 482 (2002); People v Washington, 51 AD3d 1223 (3d Dept 2008). Cf. People v Ryan, 59 AD3d 751 (3d Dept 2009).

Plea must be knowingly entered

Where the court failed to inform defendant that the sentence would run consecutive to the undischarged sentence of a prior conviction, the guilty plea was vacated. People v Morbillo, 56 AD3d 694 (2d Dept 2008).

Factors considered

Among the factors to be considered on a motion to withdraw are: whether defendant is asserting innocence; the prejudice to the prosecution; whether the delay would inconvenience the court; miscommunication between client and counsel (interpreter, claims of ineffective assistance); claims of why the plea was not knowing, intelligent and voluntary (mental condition at time of plea); the sufficiency of the plea; defendant’s education level and familiarity with the criminal-justice system; the presence of a viable defense; new evidence, including recantation of complainant; genuine doubts of defendant’s guilt; whether defendant had representation; whether counsel’s advice was inaccurate and whether, but for that information, defendant would have entered the guilty plea; whether the information was placed on the record; and the interests of justice.

The strength of the motion may depend on the detail of supporting facts. A motion to withdraw may be given greater consideration when it is made shortly after the plea, is in writing, and contains specific allegations supporting the motion. See People v Ranieri, 43 AD2d 1012 (4th Dept 1974).

Prosecution response

The prosecution as well should consider addressing whichever of these are applicable factors. See Donnino, New York Court of Appeals on Criminal Law, 2d ed., § 26:32. An order permitting withdrawal of a guilty plea is not appealable by the People.

Background information

Before moving to withdraw, it may be advisable to obtain a copy of the plea minutes to determine whether the plea was in any way not knowingly or voluntarily made.

Obtaining a mental evaluation may support the defendant’s contention that the plea was not knowingly made. See People v D’Adamo, 281 AD2d 751 (3d Dept 2001).

Use of withdrawn colloquy and plea barred

If the guilty plea is withdrawn and the case proceeds to trial, the prosecution may not use the colloquy or guilty plea on evidence-in-chief or to impeach. See People v Spitaleri, 9 NY2d 168 (1961); People v Moore, 66 NY2d 1028 (1985).

Federal cases

A defendant must show more than just a change of heart prompted by a reevaluation of the evidence or the penalty being faced. See US v Couto, 311 F3d 179 (2d Cir 2002); FRCrP Rule 11.

© 2012 by Gary Muldoon