Opinion
No. 451 KA 23-00294
07-26-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DARNELL A. NEY, DEFENDANT-APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT. VINCENT A. HEMMING, ACTING DISTRICT ATTORNEY, WARSAW, FOR RESPONDENT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.
VINCENT A. HEMMING, ACTING DISTRICT ATTORNEY, WARSAW, FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DELCONTE, KEANE, AND HANNAH, JJ.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered November 21, 2022. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the first degree and attempted rape in the third degree.
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 criminal contempt in the first degree (Penal Law § 215.51 [c]) and attempted rape in the third degree (§§ 110.00, 130.25 [3]), defendant contends that County Court abused its discretion in denying his motion to withdraw his plea. We reject that contention.
"[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 that discretion unless there is some evidence of innocence, fraud, or mistake in inducing [a] plea" (People v Alexander, 203 A.D.3d 1569, 1570 [4th Dept 2022], lv denied 38 N.Y.3d 1031 [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 [4th Dept 2022], lv denied 38 N.Y.3d 1188 [2022], quoting People v Tinsley, 35 N.Y.2d 926, 927 [1974]; see People v Weems, 203 A.D.3d 1684, 1684 [4th Dept 2022], lv denied 38 N.Y.3d 1036 [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 [2013]; see People v Brooks, 187 A.D.3d 1587, 1589 [4th Dept 2020], lv denied 36 N.Y.3d 1049 [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 [4th Dept 2022], lv denied 39 N.Y.3d 940 [2022] [internal quotation marks omitted]; see Alexander, 203 A.D.3d at 1570).
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 and pleaded guilty due to defense counsel's inadequate representation were belied by the statements that defendant made during the plea colloquy, and therefore his request was patently without merit (see Fox, 204 A.D.3d at 1453; People v Riley, 182 A.D.3d 998, 998-999 [4th Dept 2020], lv denied 35 N.Y.3d 1069 [2020], reconsideration denied 36 N.Y.3d 931 [2020]; People v Lewicki, 118 A.D.3d 1328, 1329 [4th Dept 2014], lv denied 23 N.Y.3d 1064 [2014]). We thus 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; People v Gizowski, 182 A.D.3d 989, 990 [4th Dept 2020], lv denied 35 N.Y.3d 1027 [2020]).
Defendant further contends that the enhanced sentence imposed following his violation of the terms of the plea agreement is unduly harsh and severe. Defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied ___ U.S. ___, 140 S.Ct. 2634 [2020]; People v Benjamin, 216 A.D.3d 1457, 1457 [4th Dept 2023]) and, because the court advised defendant of the maximum sentence that could be imposed if he violated the plea agreement, that waiver encompasses his challenge to the severity of the enhanced sentence (see People v VanDeViver, 56 A.D.3d 1118, 1119 [4th Dept 2008], lv denied 11 N.Y.3d 931 [2009], reconsideration denied 12 N.Y.3d 788 [2009]; cf. People v Johnson, 14 N.Y.3d 483, 487 [2010]; see also People v Espino, 279 A.D.2d 798, 800 [3d Dept 2001]).