| People v Smith |
| 2008 NY Slip Op 07020 [54 AD3d 879] |
| September 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GarySmith, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel; Robert Ho on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal,J.), rendered November 7, 2005, convicting him of aggravated criminal contempt, criminalcontempt in the first degree, and criminal contempt in the second degree, upon his plea of guilty,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged by indictment with multiple counts of criminal contempt in thefirst degree and criminal contempt in the second degree, aggravated harassment in the seconddegree, aggravated criminal contempt, menacing in the second degree, and endangering thewelfare of a child, for violating an order of protection that was issued against the defendant onbehalf of his wife. The defendant entered a plea of guilty to one count each of aggravatedcriminal contempt, criminal contempt in the first degree, and criminal contempt in the seconddegree. As part of the plea agreement, the Supreme Court told the defendant that it wouldsentence him to a Mental Illness and Controlled-Substance Abuse (hereinafter MICA) treatmentprogram, promising that if he successfully completed that program, it would then sentence him toprobation for a term of five years. The court warned the defendant that if he failed to successfullycomplete the MICA program, it would sentence him to an indeterminate term of incarceration of2 to 6 years. The defendant did not complete the required MICA program, and the courtsentenced him to concurrent indeterminate terms of incarceration of 2 to 6 years on the count ofaggravated [*2]criminal attempt, and 1
The decision to permit a defendant to withdraw a plea of guilty is a matter within the sounddiscretion of the Supreme Court (see People v Selikoff, 35 NY2d 227 [1974], certdenied 419 US 1122 [1975]; Peoplev DeLeon, 40 AD3d 1008 [2007]; People v Mann, 32 AD3d 865, 866 [2006]; People v Kucharczyk, 15 AD3d595, 596 [2005]; People v Sain, 261 AD2d 488, 489 [1999]). The decision will notbe disturbed absent an improvident exercise of discretion (see People v Lane, 1 AD3d 801, 802 [2003]). Generally, a plea ofguilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in itsinducement (see People v Zakrzewski,7 AD3d 881 [2004]; People v Davis, 250 AD2d 939 [1998]). Only in rareinstances will a defendant be entitled to an evidentiary hearing upon a motion to withdraw a pleaof guilty (see CPL 220.60 [3]; People v Frederick, 45 NY2d 520 [1978];People v Sain, 261 AD2d 488, 489 [1999]).
Upon determining that the defendant failed to meet the conditions of his plea agreement, inthat he did not successfully complete a required MICA program, the Supreme Court providentlyexercised its discretion in denying the defendant's motion to withdraw his plea of guilty, withoutconducting a hearing. Prudenti, P.J., Ritter, Florio and McCarthy, JJ., concur.