| People v Morris |
| 2010 NY Slip Op 08299 [78 AD3d 1613] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony Morris,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered October30, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in thesecond 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 attemptedburglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), defendant contendsthat County Court abused its discretion in denying his motion to withdraw his plea. We reject thatcontention (see generally People vHowell, 60 AD3d 1347 [2009]). The plea colloquy was not rendered factually insufficient bydefendant's monosyllabic responses to questioning by the court (see People v VanDeViver, 56 AD3d 1118 [2008], lv denied 11NY3d 931 [2009], reconsideration denied 12 NY3d 788 [2009]; People v Wilson, 38 AD3d 1348[2007], lv denied 9 NY3d 927 [2007]), and we conclude that the record otherwise establishesthat the plea was knowing, voluntary and intelligent (see People v Guzman, 70 AD3d 1332 [2010]; People v Spikes, 28 AD3d 1101, 1102[2006], lv denied 7 NY3d 818 [2006]). Indeed, the contention of defendant that his plea wascoerced by defense counsel is belied by the record (see People v Montgomery, 63 AD3d 1635, 1636 [2009], lv denied13 NY3d 798 [2009]; People vGimenez, 59 AD3d 1088, 1089 [2009], lv denied 12 NY3d 816 [2009]). Inaddition, defendant failed to submit any new evidence to substantiate his conclusory assertions ofinnocence in support of his motion to withdraw the plea (see Guzman, 70 AD3d 1332; People v Kimmons, 39 AD3d 1180[2007]). Thus, contrary to the contention of defendant, he made no showing of entitlement to anevidentiary hearing on his motion, and we note in any event that "[o]nly in the rare instance will adefendant be entitled to an evidentiary hearing" (People v Tinsley, 35 NY2d 926, 927 [1974];see Kimmons, 39 AD3d at 1180). Present—Martoche, J.P., Centra, Carni, Lindley andPine, JJ.