Opinion
797 KA 22-01169
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Patricia R. JORDAN, Defendant-Appellant.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, of attempted robbery in the first degree ( Penal Law §§ 110.00, 160.15 [2] ). We reject defendant's contention that County Court erred in denying her motion to withdraw her guilty plea. "[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. Floyd , 210 A.D.3d 1530, 1530, 178 N.Y.S.3d 675 [4th Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 808, 204 N.E.3d 444 [2023] [internal quotation marks omitted]; see 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] ). In support of her motion, defendant submitted an affidavit from a codefendant purporting to absolve her of guilt. We conclude that the court did not abuse its discretion in denying the motion because, among other things, the circumstances rendered the codefendant's affidavit inherently unreliable (see People v. Sparcino , 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; see generally People v. Caruso , 88 A.D.3d 809, 809-810, 930 N.Y.S.2d 668 [2d Dept. 2011], lv denied 18 N.Y.3d 923, 942 N.Y.S.2d 462, 965 N.E.2d 964 [2012] ; People v. Griffin , 4 A.D.3d 674, 675, 772 N.Y.S.2d 747 [3d Dept. 2004] ).
Defendant contends that the period of incarceration to which she was sentenced is unduly harsh and severe. Where, as here, a defendant receives the minimum term of incarceration authorized by law, that part of the sentence cannot be considered unduly harsh or severe (see People v. Newsome , 198 A.D.3d 1357, 1358-1359, 155 N.Y.S.3d 260 [4th Dept. 2021], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 342, 180 N.E.3d 506 [2021] ; People v. Griffith , 181 A.D.3d 1170, 1172, 122 N.Y.S.3d 202 [4th Dept. 2020], lv denied 35 N.Y.3d 1045, 127 N.Y.S.3d 841, 151 N.E.3d 522 [2020] ).