| People v Caldwell |
| 2010 NY Slip Op 08228 [78 AD3d 1562] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael D.Caldwell, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered June 27, 2007.The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, ofburglary in the first degree (Penal Law § 140.30 [4]). We reject the contention of defendant thatCounty Court erred in refusing to suppress evidence obtained as a result of an allegedly unlawful arrestwithout conducting a hearing. In support of that part of the omnibus motion seeking to suppress suchevidence, defendant submitted only defense counsel's affirmation containing conclusory statements, andhe therefore failed to raise factual issues sufficient to require a hearing (see CPL 710.60 [3][b]; see generally People v Bryant, 8NY3d 530, 533 [2007]; People v Mendoza, 82 NY2d 415, 426 [1993]). When there is"no dispute as to the underlying facts, but only as to application of the law to the facts, . . .the motion [can] be determined on papers alone" (Mendoza, 82 NY2d at 427).
Contrary to the further contention of defendant, the court did not abuse its discretion in denying hismotion to withdraw the plea without conducting a hearing. "Only in the rare instance will a defendant beentitled to an evidentiary hearing" with respect to such a motion (People v Tinsley, 35 NY2d926, 927 [1974]) and, here, the contention of defendant that he did not understand that he was enteringa guilty plea is belied by his statements during the plea colloquy (see People v James, 71 AD3d 1465 [2010]). Finally, the sentence is notunduly harsh or severe. Present—Centra, J.P., Fahey, Peradotto, Lindley and Green, JJ.