| People v Strickland |
| 2010 NY Slip Op 07277 [77 AD3d 1019] |
| October 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Allen C.Strickland, Appellant. |
—[*1] Gerald A. Keene, District Attorney, Owego, for respondent.
Spain, J. Appeals (1) from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered March 13, 2009, convicting defendant upon his plea of guilty of the crime of arson inthe third degree (two counts) and of violating the terms of his probation, and (2) by permission,from an order of said court, entered September 23, 2009, which denied defendant's motionpursuant to CPL 440.20 to set aside the sentence, without a hearing.
In 2005, defendant pleaded guilty to conspiracy in the fourth degree stemming from hisinvolvement in an arson in exchange for a split sentence of no more than 60 days in jail plus fiveyears of probation. In 2008, defendant was charged with four counts of arson in the third degreeand one count of attempted arson in the third degree. Pursuant to a plea agreement, defendantagreed to plead guilty to two counts of arson in the third degree in full satisfaction of theindictment, in exchange for a sentence of a term of imprisonment of 3½ to 7 years for eachcount, with the sentences to run consecutively. It was also agreed that defendant would besentenced to a prison term of 1
We affirm. Defendant initially contends that County Court erred in denying his motion towithdraw his plea without a hearing, arguing that he did not fully understand what crimes towhich he was pleading guilty. It is well settled that "[t]he decision to permit withdrawal of aguilty plea is a matter within the trial court's sound discretion, and a hearing is required onlywhere the record presents a genuine question of fact as to its voluntariness" (People v DeFabritis, 296 AD2d 664, 664 [2002], lv denied 99 NY2d 557 [2002]). Here, therecord reveals that defendant was advised of the charges to which he was pleading and of theconsequences of his guilty plea, indicated he had an opportunity to discuss the plea with counsel,that his plea was voluntary and that he was entering a plea because he was guilty. While therecord reflects some confusion on defendant's part prior to entering his plea concerning themeaning of aiding and abetting in the commission of a crime, we note that at that point CountyCourt adjourned the plea colloquy to provide defendant an opportunity to discuss the issue withcounsel. Following the adjournment, defendant proceeded to plead guilty to two counts of arsonin the third degree, specifically admitting to aiding and abetting in the setting of two fires. Underthese circumstances, we are satisfied that defendant entered a voluntary, knowing and intelligentplea (see People v Shovah, 67AD3d 1257, 1258 [2009], lv denied 14 NY3d 773 [2010]; People v Greathouse, 62 AD3d1212, 1213 [2009], lv denied 13 NY3d 744 [2009]). Moreover, there is no support inthe record for defendant's subsequent protestation of innocence. Accordingly, we conclude thatCounty Court did not abuse its discretion in denying his motion to withdraw his guilty pleawithout a hearing (see People vCarmona, 66 AD3d 1240, 1241 [2009], lv denied 14 NY3d 799 [2010]; People v Thomas, 50 AD3d 1315,1316 [2008]).
Finally, we are unpersuaded by defendant's contention that his sentence was harsh andexcessive. Inasmuch as the indictment and defendant's guilty plea establish that his participationin the setting of each fire was a separate and distinct act, we find no abuse of discretion in CountyCourt imposing consecutive sentences (see People v Reynoso, 11 AD3d 719, 720 [2004]). Further, weperceive no extraordinary circumstances or abuse of discretion warranting a reduction of thesentence in the interest of justice (seePeople v Dickson, 55 AD3d 1137, 1137-1138 [2008]; People v Wojes, 306AD2d 754, 758 [2003], lv denied 100 NY2d 600 [2003]).
Cardona, P.J., Mercure, Lahtinen and Garry, JJ., concur. Ordered that the judgment and orderare affirmed.