Opinion
KA 05-02250.
September 29, 2006.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered June 24, 2005. The judgment convicted defendant, upon his plea of guilty, of scheme to defraud in the first degree.
JOSEPH F. GERVASE, JR., BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Scudder, J.P, Kehoe, Gorski, Smith and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of scheme to defraud in the first degree (Penal Law § 190.65 [b]). Supreme Court sentenced defendant to an indeterminate term of incarceration of 11/3 to 4 years and ordered him to make restitution in the amount of $143,753.12. Contrary to the contention of defendant, the court did not abuse its discretion in denying his motion to withdraw the guilty plea ( see People v McCawley, 23 AD3d 1157, lv denied 6 NY3d 778; People v White, 13 AD3d 1120, 1121, lv denied 4 NY3d 837; People v Brown, 177 AD2d 460, lv denied 79 NY2d 944; see generally CPL 220.60; People v Frederick, 45 NY2d 520, 524-525). The record does not support the contention that the physical illness of defendant interfered with his understanding, free will, and capacity to express himself at the time of the plea. We conclude that, despite defendant's age and debilitated physical condition, the court did not abuse its discretion in sentencing defendant to the maximum term of incarceration.