| People v Sparcino |
| 2010 NY Slip Op 08165 [78 AD3d 1508] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph Sparcino,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered October14, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary 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 of burglary in thesecond degree (Penal Law § 140.25 [2]), defendant contends that County Court erred indenying his motion to withdraw the plea on the ground that it was coerced without conducting ahearing. Contrary to the People's contention, the contention of defendant survives his waiver of the rightto appeal (see People v Poleun, 75AD3d 1109 [2010]; People vWright, 66 AD3d 1334 [2009], lv denied 13 NY3d 912 [2009]). We neverthelessreject defendant's contention. "There exists no hard-and-fast rule [that] prescribes the natureand extent of the fact-finding procedures prerequisite to the disposition of motions to withdraw a plea ofguilty previously entered" (People v Frederick, 45 NY2d 520, 524-525 [1978]). The courtmust allow the defendant an opportunity to present his or her claims such that it can make "an informedand prudent determination" (id. at 525). Here, defendant was afforded the requisite"reasonable opportunity to advance his claims" at sentencing, where there was extensive discussion ofdefendant's motion (id.; see generally People v Fiumefreddo, 82 NY2d 536 [1993]).
Further, the court did not abuse its discretion in denying the motion. Defendant admitted eachelement of the offense during his plea allocution and did not claim either that he was innocent or that hehad been coerced by defense counsel at that time. The court was presented with a credibilitydetermination when defendant moved to withdraw his plea and advanced his belated claims ofinnocence and coercion, and it did not abuse its discretion in discrediting those claims (see People vDixon, 29 NY2d 55, 56 [1971]; see also People v Ramos, 63 NY2d 640, 642-643[1984]). In addition, the court did not abuse its discretion in discrediting the unsupported andconclusory affidavits of defendant's family members that reiterated defendant's claims of innocence andcoercion (see generally People v Dozier,12 AD3d 1176 [2004]; People vSmith, 5 AD3d 1095 [2004], lv denied 2 NY3d 807 [2004]).Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.