| People v Nelson |
| 2009 NY Slip Op 06996 [66 AD3d 1430] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PhillipNelson, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedJune 28, 2006. The judgment convicted defendant, upon his plea of guilty, of rape in the seconddegree.
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 rape inthe second degree (Penal Law § 130.30 [1]), defendant contends that County Court abusedits discretion in denying his motion to withdraw the plea based on defendant's claims ofinnocence and mistake. We conclude that defendant's contention is preserved for our review onlyinsofar as it is based on defendant's protestations of innocence. Following the plea, defensecounsel informed the court that defendant denied his guilt and that it was defense counsel'sunderstanding that defendant wished to withdraw his plea. Contrary to the People's contention,we deem that statement sufficient to preserve for our review the contention of defendant withrespect to his claim of innocence. We nevertheless reject that contention. "Here, defendant'sbelated and conclusory allegations of innocence in support of the motion are belied by the pleacolloquy" (People v Kimmons, 39AD3d 1180, 1180 [2007]; seePeople v Klein, 11 AD3d 959 [2004]).
With respect to defendant's claim of mistake, defendant contends that the court should havepermitted him to withdraw his plea because, at the time he entered the plea, he was unaware thathe would lose custody of his daughter as a consequence of the plea. Defendant failed to raise thatclaim at the time of his motion, however, and thus has not preserved it for our review (seegenerally People v Mackey, 77 NY2d 846 [1991]; People v Mesquite, 234 AD2d395 [1996], lv denied 89 NY2d 1013 [1997]). We decline to exercise our power toreview that claim as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Pine, JJ.