Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Michael NEWSOME, Defendant–Appellant. (Appeal No. 1.)
Robert Tucker, Palmyra, for Defendant–Appellant. Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
Robert Tucker, Palmyra, for Defendant–Appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of assault in the first degree (Penal Law § 120.10[1], [2] ). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal contempt in the first degree (§ 215.51[b][ii], [iv] ).
We reject defendant's contention in each appeal that County Court erred in denying his motion to withdraw his guilty plea without a hearing. “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare circumstances” (People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; see People v. Manor, 27 N.Y.3d 1012, ––––, ––– N.Y.S.3d ––––, –––N.E.3d ––––; People v. Green, 122 A.D.3d 1342, 1343, 995 N.Y.S.2d 897 ). Here, the record establishes that, with respect to both appeals, “[d]efendant admitted each element of the offense[s] during his plea allocution and did not claim either that he was innocent or that he had been coerced” (People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 ). Defendant's postplea protestations of innocence, misunderstanding, and “pressure” presented credibility issues that the court could properly resolve without a hearing (see People v. Dixon, 29 N.Y.2d 55, 56, 323 N.Y.S.2d 825, 272 N.E.2d 329 ; Sparcino, 78 A.D.3d at 1509, 911 N.Y.S.2d 523 ; see also People v. Dickerson, 66 A.D.3d 1371, 1372, 887 N.Y.S.2d 387, lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 ).
We likewise reject defendant's contention in each appeal that the court erred in sentencing him as a second felony offender without first conducting a hearing. In order to obtain a hearing regarding a predicate felony conviction, “a defendant must do more than make conclusory allegations ... He must support his allegations with facts” (People v. Konstantinides, 14 N.Y.3d 1, 15, 896 N.Y.S.2d 284, 923 N.E.2d 567 ; see People v. Brown, 74 A.D.3d 1748, 1750, 902 N.Y.S.2d 276, lv. denied 15 N.Y.3d 802, 908 N.Y.S.2d 162, 934 N.E.2d 896 ). Defendant's unsubstantiated assertion regarding the alleged “incorrectness” of the sentencing date for his predicate felony conviction is not an allegation supported by facts sufficient to entitle him to a hearing (see Brown, 74 A.D.3d at 1750, 902 N.Y.S.2d 276 ).
Defendant's contention in each appeal that his guilty plea was not sufficiently allocuted is without merit. “There is no requirement that defendant personally recite the facts underlying the crime[s] to which he pleaded guilty” (People v. Singletary, 307 A.D.2d 779, 779, 762 N.Y.S.2d 862, lv. denied 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 ; see People v. Brown, 305 A.D.2d 1068, 1069, 759 N.Y.S.2d 830, lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 ; see also People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ). Here, “[t]he record establishes that defendant admitted the essential elements of the ... count[s] of the indictment[s] [to which he pleaded guilty,] and thus his factual allocution [in each appeal] is legally sufficient” (People v. Dorrah, 50 A.D.3d 1619, 1619, 856 N.Y.S.2d 406, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 394, 894 N.E.2d 658 [internal quotation marks omitted]; see People v. Emm, 23 A.D.3d 983, 984, 804 N.Y.S.2d 880, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797 ).
Finally, we reject defendant's contention in each appeal that the sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.