Opinion
892 KA 18-01790
11-18-2022
The PEOPLE of the State of New York, Respondent, v. Derek Y. FLOYD, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of grand larceny in the fourth degree ( Penal Law § 155.30 [1] ), defendant contends that County Court erred in summarily denying his request to withdraw his guilty plea. Preliminarily, because that contention would survive even a valid waiver of the right to appeal, we need not consider defendant's challenge to the validity of the waiver (see People v. Thomas , 34 N.Y.3d 545, 558, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Roots , 201 A.D.3d 1364, 1365, 158 N.Y.S.3d 714 [4th Dept. 2022] ; People v. Gizowski , 182 A.D.3d 989, 989, 120 N.Y.S.3d 901 [4th Dept. 2020], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 35, 149 N.E.3d 873 [2020] ).
Although defendant preserved his contention for our review by seeking to withdraw his plea on essentially the same grounds as those advanced on appeal (see People v. Johnson , 23 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 [2014] ; People v. Bovio , 206 A.D.3d 1568, 1568-1569, 168 N.Y.S.3d 632 [4th Dept. 2022] ), we reject it on the merits. "[P]ermission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of discretion unless there is some evidence of innocence, fraud, or mistake in inducing a plea" ( People v. Alexander , 203 A.D.3d 1569, 1570, 161 N.Y.S.3d 901 [4th Dept. 2022], lv denied 38 N.Y.3d 1031, 169 N.Y.S.3d 210, 189 N.E.3d 317 [2022] [internal quotation marks omitted]). Furthermore, " ‘[o]nly in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice. The defendant should be afforded [a] reasonable opportunity to present his [or her] contentions and the court should be enabled to make an informed determination’ " ( People v. Harris , 206 A.D.3d 1711, 1711-1712, 169 N.Y.S.3d 441 [4th Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 207, 197 N.E.3d 487 [2022], quoting People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ; see People v. Weems , 203 A.D.3d 1684, 1684, 162 N.Y.S.3d 839 [4th Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 229, 189 N.E.3d 336 [2022] ). "[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion" ( People v. Mitchell , 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ; see People v. Brooks , 187 A.D.3d 1587, 1589, 133 N.Y.S.3d 690 [4th Dept. 2020], lv denied 36 N.Y.3d 1049, 140 N.Y.S.3d 875, 164 N.E.3d 962 [2021] ). Moreover, "a court does not abuse its discretion in denying a motion to withdraw a guilty plea where the defendant's allegations in support of the motion are belied by the defendant's statements during the plea proceeding" ( People v. Fox , 204 A.D.3d 1452, 1453, 166 N.Y.S.3d 790 [4th Dept. 2022] [internal quotation marks omitted]; see Alexander , 203 A.D.3d at 1570, 161 N.Y.S.3d 901 ).
Here, defendant was provided with a reasonable opportunity to present his contentions in support of his request to withdraw the plea. However, defendant's conclusory and unsubstantiated assertions that he was innocent, under duress, and dissatisfied with defense counsel's representation were belied by the statements that he made during the plea colloquy, and therefore his request was patently without merit (see Fox , 204 A.D.3d at 1453, 166 N.Y.S.3d 790 ; People v. Riley , 182 A.D.3d 998, 998-999, 120 N.Y.S.3d 909 [4th Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 392, 152 N.E.3d 1194 [2020], reconsideration denied 36 N.Y.3d 931, 135 N.Y.S.3d 335, 159 N.E.3d 1102 [2020] ; People v. Lewicki , 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ). We therefore perceive no abuse of discretion in the court's summary denial of defendant's request to withdraw his plea (see Alexander , 203 A.D.3d at 1570, 161 N.Y.S.3d 901 ; Gizowski , 182 A.D.3d at 989-990, 120 N.Y.S.3d 901 ).