| People v Russell |
| 2010 NY Slip Op 09579 [79 AD3d 1530] |
| December 30, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael Russell,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), renderedDecember 2, 2009, convicting defendant upon his plea of guilty of the crime of rape in the third degree.
In satisfaction of a seven-count indictment, defendant pleaded guilty to one count of rape in thethird degree, waived his right to appeal and was sentenced to an agreed-upon term of four years inprison followed by 10 years of postrelease supervision. At sentencing, defendant made a pro se motionto withdraw his plea contending, among other things, that he failed to comprehend the underlying pleaagreement. County Court denied that motion without a hearing and this appeal ensued.
We affirm. "The decision to permit withdrawal of a guilty plea is a matter within the trial court'ssound discretion, and a hearing is required only where the record presents a genuine question of fact asto its voluntariness" (People v Shovah,67 AD3d 1257, 1257 [2009], lv denied 14 NY3d 773 [2010] [internal quotation marksand citations omitted]; see People v Atkinson, 58 AD3d 943 [2009]; People v Singletary, 51 AD3d 1334[2008], lv denied 11 NY3d 741 [2008]). Further, a guilty plea generally may not bewithdrawn "absent some evidence or claim of innocence, fraud or mistake in its inducement"(People v Davis, 250 AD2d 939, 940 [1998]; see [*2]People v Sepulveda, 65 AD3d754, 755 [2009], lv denied 13 NY3d 941 [2010]; People v Rosseter, 62 AD3d 1093, 1095 [2009]).
Defendant's present claim—that his low IQ, mental health issues and certain medicationsprecluded him from understanding the ramifications of his plea bargain—is belied by a review ofthe plea colloquy, wherein defendant, in response to County Court's extensive questioning, indicatedthat he understood the nature of the plea, had discussed the viability of potential defenses and hadsufficient time to confer with counsel and was satisfied with his representation. Additionally, defendantdenied having any physical, mental or emotional issue that interfered with his decision-making ability andaffirmatively indicated that he was thinking clearly, understood what he was doing and was acceptingthe plea because he was in fact guilty. Finally, defendant's conclusory assertions regarding his healthissues, which were "unsupported by any medical proof, . . . did not raise a sufficientquestion of fact regarding the voluntariness of his plea so as to require an evidentiary hearing" (People v Williams, 35 AD3d 971, 972[2006], lv denied 8 NY3d 928 [2007]; compare People v D'Adamo, 281 AD2d 751,753 [2001]). Under these circumstances, we cannot say that County Court abused its discretion indenying defendant's motion to withdraw his plea (see People v First, 62 AD3d 1043, 1044 [2009], lv denied 12NY3d 915 [2009]; People v Atkinson, 58 AD3d at 944; People v Quinones, 51 AD3d 1226, 1228 [2008], lv denied 10NY3d 938 [2008]; People v Dalton, 47AD3d 1010, 1011 [2008]).
Mercure, J.P., Peters, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed.