| People v Sepulveda |
| 2009 NY Slip Op 06196 [65 AD3d 754] |
| August 13, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Johansen F.Sepulveda, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 3, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fifth degree.
Defendant, a legal permanent resident, was indicted in September 2005 for the crime ofcriminal possession of a controlled substance in the third degree. After extensive pleanegotiations, including consideration of his possible deportation for committing a felonynarcotics offense (see 8 USC § 1227 [a] [2] [B] [i]) and a negative evaluation foradmission to the Drug Court, defendant pleaded guilty on January 11, 2006 to a reduced chargeof criminal possession of a controlled substance in the fifth degree with the understanding that hewould be sentenced to four months in jail followed by five years of probation.
After receipt of the presentence report, County Court, with the consent of the DistrictAttorney, agreed to place defendant on interim probation for a period of one year, afterwhich-assuming he complied with the terms of probation-defendant's guilty plea to the felonywould be vacated and he would be permitted to plead guilty to a misdemeanor, thereby avoidingthe possibility of deportation. However, other charges were filed against defendant within theprobationary term and, subsequently, defendant changed attorneys and moved to withdraw hisplea. Finally, on January 3, 2008, after 22 scheduled court appearances, County Court sentenceddefendant to five years of probation. Defendant now appeals, asserting that his motion to [*2]withdraw his guilty plea should have been granted.
We disagree and affirm. "Generally, a guilty plea may not be withdrawn absent someevidence or claim of innocence, fraud or mistake in its inducement" (People v Davis, 250AD2d 939, 940 [1998] [citation omitted]) and "the decision to permit withdrawal. . . is a matter committed to the trial court's sound discretion" (People v Singletary, 51 AD3d1334, 1334 [2008], lv denied 11 NY3d 741 [2008]). Here, a careful review of therecord reveals no abuse of discretion in County Court's denial of defendant's motion to withdrawhis plea (see generally People v McDonald, 296 AD2d 13, 17 [2002], affd 1NY3d 109 [2003]).
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.