Opinion
2013-01-31
The PEOPLE of The State of New York, Respondent, v. Jerome ARNOLD, Appellant.
Francisco P. Berry, Ithaca, for appellant. Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), for respondent.
Francisco P. Berry, Ithaca, for appellant. Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.
MERCURE, J.P.
Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered June 3, 2011, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to assault in the second degree in full satisfaction of a five-count indictment, and was to be sentenced to a prison term of two years to be followed by three years of postrelease supervision. Prior to sentencing, defendant moved pro se to withdraw his guilty plea, alleging that it was the result of duress. County Court denied defendant's motion without a hearing and sentenced him as agreed. Defendant now appeals.
Whether a defendant should be permitted to withdraw his or her guilty plea is a determination that rests within the sound discretion of the trial court, and a hearing is warranted only in rare instances ( see People v. Hayes, 71 A.D.3d 1187, 1188, 896 N.Y.S.2d 225 [2010],lv. denied15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010];People v. Wyant, 47 A.D.3d 1068, 1069, 849 N.Y.S.2d 357 [2008],lv. denied10 N.Y.3d 873, 860 N.Y.S.2d 499, 890 N.E.2d 262 [2008] ). Generally, a plea may not be withdrawn absent evidence of innocence, fraud or mistake in the inducement ( see People v. Waters, 80 A.D.3d 1002, 1003, 914 N.Y.S.2d 781 [2011],lv. denied16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011];People v. Carmona, 66 A.D.3d 1240, 1241, 887 N.Y.S.2d 370 [2009],lv. denied14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ). Here, the record reflects that defendant's plea was informed and voluntary. County Court fully admonished defendant of the rights he was forfeiting by pleading guilty and stressed that he was under no obligation to enter the plea. Defendant affirmed that he understoodand wanted to proceed with the plea. Moreover, County Court engaged defendant in a thorough factual allocution whereby he unequivocally admitted to conduct constituting the crime of assault in the second degree as charged in the indictment. Inasmuch as nothing in the record casts doubt upon defendant's guilt and defendant's postplea assertions of innocence and undue pressure from counsel are wholly unsubstantiated, County Court properly denied the motion to withdraw the plea without a hearing ( see People v. Waters, 80 A.D.3d at 1003, 914 N.Y.S.2d 781;People v. Shovah, 67 A.D.3d 1257, 1258, 889 N.Y.S.2d 717 [2009],lv. denied14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110 [2010];People v. Carmona, 66 A.D.3d at 1241, 887 N.Y.S.2d 370). Finally, counsel's failure to join in the motion to withdraw the plea did not require County Court to assign new counsel ( see People v. Murray, 25 A.D.3d 911, 912, 807 N.Y.S.2d 473 [2006],lv. denied6 N.Y.3d 896, 817 N.Y.S.2d 631, 850 N.E.2d 678 [2006];People v. Lindsey, 283 A.D.2d 782, 782, 728 N.Y.S.2d 201 [2001],lv. denied96 N.Y.2d 940, 733 N.Y.S.2d 380, 759 N.E.2d 379 [2001] ).
ORDERED that the judgment is affirmed.