| People v Waters |
| 2011 NY Slip Op 00295 [80 AD3d 1002] |
| January 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Isiah Waters,Also Known as Eight, Appellant. |
—[*1]
Rose, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered October 2, 2008, convicting defendant upon his plea of guilty of the crime of murder inthe second degree.
In satisfaction of an 11-count indictment, defendant pleaded guilty to murder in the seconddegree and waived his right to appeal. Prior to sentencing, he moved to withdraw his plea,claiming that it was not knowingly, intelligently and voluntarily entered because he was coercedby counsel into accepting it and did not understand its terms. County Court denied the motionand sentenced defendant, in accordance with the plea agreement, to 20 years to life in prison. Henow appeals, and we affirm.
Initially, the People concede that defendant's claims survive the waiver of appeal and arepreserved by virtue of his motion to withdraw the plea (see People v Mitchell, 73 AD3d 1346, 1347 [2010]; People v Greathouse, 62 AD3d1212, 1213 [2009], lv denied 13 NY3d 744 [2009]). Such a motion, however, is leftto the sound discretion of the trial court and, generally, a plea may not be withdrawn unless thereis some evidence of innocence, fraud or mistake in the inducement (see People v Shovah, 67 AD3d1257, 1258 [2009], lv denied 14 NY3d 773 [2010]; People v Carmona, 66 AD3d1240, 1241 [2009], lv denied 14 NY3d 799 [2010]).[*2]
Here, the record reveals that County Court engaged in adetailed plea colloquy during which defendant repeatedly expressed understanding of the termsof the plea agreement, indicated that he had discussed it thoroughly with his counsel and wassatisfied with his services, declined the opportunity to consult further with counsel and deniedreceiving any threats, promises or pressure to plead guilty. Also, contrary to defendant'scontention, his allocution did not raise the possibility of a justification defense. Defendant statedthat he chased the victim and, with the intent to cause his death, fired a .22 caliber weapon at himnumerous times. Viewing the allocution in its entirety, it is clear that defendant's motive wasretaliation, not self-defense. Accordingly, we conclude that County Court properly denied themotion to withdraw the guilty plea without a hearing (see People v Johnson, 77 AD3d 986 [2010]; People v First, 62 AD3d 1043,1044 [2009], lv denied 12 NY3d 915 [2009]). Finally, defendant's challenge to hissentence as harsh and excessive is precluded by his valid waiver of appeal (see People v Lopez, 6 NY3d 248,255-256 [2006]; People v Thomas,71 AD3d 1231, 1233 [2010], lv denied 14 NY3d 893 [2010]).
Peters, J.P., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.