| People v Howell |
| 2009 NY Slip Op 02064 [60 AD3d 1347] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RaheimHowell, Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedJanuary 14, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the second 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 ofcriminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]), defendant contends that County Court abused its discretion in denying his motion towithdraw his plea at the time of sentencing. We reject that contention. According to defendant,he entered the guilty plea under the mistaken belief that the sentence imposed would runconcurrently with a sentence to be imposed in a matter pending in federal court. It is well settled,however, that a court's " 'refusal to permit withdrawal does not constitute an abuse of. . . discretion unless there is some evidence of innocence, fraud, or mistake in [theinducement of] the plea' " (People vThomas, 17 AD3d 1047, 1047 [2005], lv denied 5 NY3d 770 [2005]; seeCPL 220.60 [3]; People vPillich, 48 AD3d 1061 [2008], lv denied 11 NY3d 793 [2008]). There is nosuch evidence here. Rather, the record establishes that the terms of the sentencing commitmentwere "susceptible to but one interpretation" (People v Cataldo, 39 NY2d 578, 580[1976]; see People v Ramos, 56AD3d 1180 [2008]; People v Reyes, 167 AD2d 920, 921 [1990], lv denied77 NY2d 842 [1991]), and the court adhered to that sentencing commitment (seeCataldo, 39 NY2d at 580).
The challenge by defendant to the factual sufficiency of the plea allocution is unpreservedfor our review (see People v Lopez, 71 NY2d 662, 665 [1988]), and it also isencompassed by his valid waiver of the right to appeal (see People v Grimes, 53 AD3d 1055 [2008], lv denied 11NY3d 789 [2008]; People vJackson, 50 AD3d 1615 [2008], lv denied 10 NY3d 960 [2008]). In any event,his challenge is without merit. Present—Scudder, P.J., Hurlbutt, Peradotto, Green andGorski, JJ.