Opinion
1362 KA 16–00890
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Inna NICHIPORUK, Defendant-Appellant.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a plea of guilty of felony driving while intoxicated ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][ii] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ), defendant contends that County Court erred in denying her motion to withdraw her guilty plea. We affirm.
Contrary to defendant's contention, the court did not abuse its discretion in denying her motion to withdraw her plea on the ground of actual innocence. It is well established that "[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 the plea" ( People v. Rosekrans, 149 A.D.3d 1563, 1564, 52 N.Y.S.3d 793 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] [internal quotation marks omitted] ). On her motion, defendant asserted that she had a "valid defense" to the crimes, i.e., that she had not operated the vehicle on the night of her arrest. In support of that purported defense, defendant submitted the affidavit of her brother, who averred that he had been on his way to pick defendant up from the parking lot in which she was arrested. Even assuming the truth of the brother's affidavit, we conclude that his averments do not establish that defendant had not been driving unlawfully before arriving at the parking lot. Indeed, the fact that, at the time of her arrest, defendant was found alone, intoxicated, and in the driver's seat of a running vehicle with her seat belt fastened suggests that she had operated the vehicle before being found by the police in the commercial parking lot (see People v. Dunster, 146 A.D.3d 1029, 1029–1030, 44 N.Y.S.3d 272 [3d Dept. 2017], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; see also People v. Annis, 126 A.D.3d 1525, 1526, 6 N.Y.S.3d 363 [4th Dept. 2015] ; People v. Panek, 305 A.D.2d 1098, 1098, 759 N.Y.S.2d 619 [4th Dept. 2003], lv. denied 100 N.Y.2d 623, 767 N.Y.S.2d 407, 799 N.E.2d 630 [2003] ). To the extent that defendant denied having operated the vehicle in letters she submitted to the court and in remarks she made to her probation officer during the presentence interview, those unsworn statements are not evidence in admissible form (see generally Rosekrans, 149 A.D.3d at 1564, 52 N.Y.S.3d 793 ; People v. Davis, 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ), and are the sort of "conclusory and unsubstantiated" claims of innocence insufficient to contradict her admissions to the contrary during the plea colloquy ( People v. Garner, 86 A.D.3d 955, 955, 926 N.Y.S.2d 796 [4th Dept. 2011] ; see People v. Haffiz, 19 N.Y.3d 883, 884, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ; People v. Goodwin, 159 A.D.3d 1433, 1434, 73 N.Y.S.3d 327 [4th Dept. 2018] ).
Defendant further contends that her plea was not knowingly, intelligently and voluntarily entered because she had suffered a traumatic brain injury approximately 10 months prior to entering the plea, which rendered her unable to appropriately understand and weigh her options, and that the court erred in denying her motion to withdraw the plea on that ground. We reject that contention. A traumatic brain injury, like any other cognitive or psychological disorder, does not necessarily prevent a " ‘knowing and voluntary choice’ " ( People v. Gessner, 155 A.D.3d 1668, 1669, 64 N.Y.S.3d 822 [4th Dept. 2017] ; see also People v. Tracy, 125 A.D.3d 1517, 1518, 3 N.Y.S.3d 256 [4th Dept. 2015], lv denied 27 N.Y.3d 1008, 38 N.Y.S.3d 117, 59 N.E.3d 1229 [2016] ). We decline to disturb a plea where, as here, there is no "indication that [the] defendant was uninformed, confused or incompetent" at the time it was entered ( People v. Alexander, 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802 [2002] ; see People v. Nudd, 53 A.D.3d 1115, 1115, 861 N.Y.S.2d 879 [4th Dept. 2008], lv denied 11 N.Y.3d 834, 868 N.Y.S.2d 608, 897 N.E.2d 1092 [2008] ; see also People v. Scott, 144 A.D.3d 1597, 1598, 40 N.Y.S.3d 689 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ; People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497 [4th Dept. 2013], lv denied 21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013] ).