People v. Estrella — 288 A.D.2d 133

Majority

p. 133

The People of the State of New York, Respondent, v Angel Estrella, Appellant.

[733 NYS2d 175]

—Judgment, Supreme Court, New York County (Dora Irizarry, J.), rendered December 21, 1999, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree and attempted sexual abuse in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 3V2 to 7 years and IV2 to 3 years, respectively, unanimously affirmed.

Defendant’s suppression motion was properly denied. Immediately after lawfully arresting defendant on a crowded subway platform, the pohce, who had been informed by the victim and by a witness that defendant had used a knife in the

p. 134

commission of a sexual crime and had secreted it in his duffle bag, properly searched the bag and recovered two knives. Although defendant had been handcuffed, the bag, which was at defendant’s feet, had not been reduced to the exclusive control of the police and the police acted reasonably to ensure their safety and that of bystanders, and to prevent the destruction of evidence (see, People v Smith, 59 NY2d 454 , 458-459; People v De Santis, 46 NY2d 82 , cert denied 443 US 912 ; People v Wylie, 244 AD2d 247 , lv denied 91 NY2d 946 ).

The court properly exercised its discretion in denying defendant’s motion to withdraw his guilty plea, after affording defendant sufficient opportunity to present his claims of innocence and coercion. The court was thoroughly familiar with the proceedings, including the plea allocution, and was able to make the requisite “informed and prudent determination” (People v Frederick, 45 NY2d 520 , 525) that defendant’s claims were unfounded (see, People v Pemberton, 268 AD2d 236 ).

Defendant’s challenge to the sufficiency of his factual recitation is unpreserved and we decline to review it in the interests of justice (see, People v Toxey, 86 NY2d 725 ; People v Lopez, 71 NY2d 662 , 665-666). Were we to review this claim, we would find that nothing in the plea allocution cast doubt on defendant’s guilt.

We perceive no basis for reduction of sentence. Concur— Sullivan, P. J., Nardelli, Tom, Saxe and Friedman, JJ.

Cases cited

People v. Smith 59 NY2d 454 N.Y. 1983-07-07 at 458-459 p. 134
People v. De Santis 46 NY2d 82 N.Y. 1978-12-07 p. 134
McKenzie v. Montana 443 US 912 SCOTUS 1979-06-25 p. 134
People v. Wylie 244 AD2d 247 N.Y. App. Div. 1997-11-20 p. 134
Domino Media, Inc. v. Kranis 91 NY2d 946 N.Y. 1998-04-02 p. 134
People v. Frederick 45 NY2d 520 N.Y. 1978-11-02 at 525 p. 134
People v. Toxey 86 NY2d 725 N.Y. 1995-06-29 p. 134
People v. Lopez 71 NY2d 662 N.Y. 1988-06-02 at 665-666 p. 134