| People v Mitchell |
| 2010 NY Slip Op 04288 [73 AD3d 1346] |
| May 20, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jahlaune D.Mitchell, Appellant. |
—[*1]
Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), renderedJuly 16, 2009, convicting defendant upon his plea of guilty of the crime of attempted rape in thesecond degree.
Under the terms of a plea agreement, defendant consented to prosecution by a superior courtinformation, purportedly waived his right to appeal and pleaded guilty to attempted rape in thesecond degree. At sentencing, defendant unsuccessfully moved to withdraw his plea. CountyCourt then sentenced him as a second felony offender to a prison term of four years andpostrelease supervision of 10 years. Defendant now appeals.
As the People concede, defendant's argument that he should have been permitted towithdraw his guilty plea survives any appeal waiver; nevertheless, we affirm (see People v Greathouse, 62 AD3d1212, 1213 [2009], lv denied 13 NY3d 744 [2009]). Whether to allow withdrawal ofa guilty plea is left to the sound discretion of County Court, and will generally not be permittedabsent "some evidence of innocence, fraud or mistake in its inducement" (People v Carmona, 66 AD3d1240, 1241 [2009], lv denied 14 NY3d 799 [2010]; see People v Sepulveda, 65 AD3d754, 755 [2009], lv denied 13 NY3d 941 [2010]). During the plea colloquy,defendant was advised of his rights, indicated he understood them and admitted committing thecrime in question, and his later unsubstantiated claim of innocence was insufficient to supporthis request to withdraw his plea or otherwise require a hearing on the issue (see People vShovah, 67 AD3d [*2]1257, 1257-1258 [2009], lvdenied 14 NY3d 773 [2010]; People v Carmona, 66 AD3d at 1241). Defendant'sfurther intimation that his plea arose from the ineffective assistance of counsel involves mattersoutside of the record and is also belied by his statements during the plea colloquy that he wassatisfied with counsel's efforts (seePeople v Scitz, 67 AD3d 1251, 1252 [2009]; People v Escalante, 16 AD3d 984, 985-986 [2005], lvdenied 5 NY3d 788 [2005]; cf.People v Williams, 35 AD3d 1085, 1086-1087 [2006]).
Cardona, P.J., Mercure, Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that thejudgment is affirmed.