Opinion
KA 00-01197
December 30, 2002.
Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered March 8, 2000, convicting defendant upon his plea of guilty of scheme to defraud in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HAYES, J.P., HURLBUTT, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of scheme to defraud in the second degree (Penal Law § 190.60 [former (1)(a)]). We reject the contention of defendant that Supreme Court abused its discretion in denying his motion to withdraw his plea ( see People v. Alexander, 97 N.Y.2d 482, 485). Although during the plea allocution defendant reserved the right to withdraw his plea if an agreement could not be reached with respect to restitution, his motion to withdraw the plea was premised upon his subsequent claim of innocence during his presentence interview and upon alleged ineffective assistance of counsel. Defendant's subsequent claim of innocence was unsupported and thus does not affect the voluntariness of the plea when it was entered ( see People v. Dixon, 29 N.Y.2d 55, 57; see also People v. Jordan, 292 A.D.2d 860, 861, lv denied 98 N.Y.2d 698). The contention of defendant that defense counsel lied to him regarding his ability to withdraw his plea and thus that he was denied effective assistance of counsel is similarly unsupported by the record.