| People v Buske |
| 2011 NY Slip Op 06749 [87 AD3d 1354] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Candy Buske,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedJanuary 4, 2008. The judgment convicted defendant, upon her plea of guilty, of attemptedcriminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofattempted criminal possession of a weapon in the third degree (Penal Law §§110.00, 265.02 [1]). We reject defendant's contention that her waiver of the right to appeal wasinvalid. "County Court's plea colloquy, together with the written waiver of the right to appeal,adequately apprised defendant that 'the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty' " (People v Kulyeshie, 71 AD3d 1478, 1478 [2010], lv denied14 NY3d 889 [2010], quoting People vLopez, 6 NY3d 248, 256 [2006]). The further contention of defendant that her plea wasnot knowing, voluntary, or intelligent because she did not recite the underlying facts of the crimeto which she pleaded guilty is actually a challenge to the factual sufficiency of the plea allocutionand thus is encompassed by the valid waiver of the right to appeal (see People v Simcoe, 74 AD3d1858, 1859 [2010], lv denied 15 NY3d 778 [2010]; People v Jamison, 71 AD3d 1435,1436 [2010], lv denied 14 NY3d 888 [2010]). We further note that defendant failed topreserve her contention for our review because she did not move to vacate the judgment ofconviction, nor did she raise that ground in her motion to withdraw the plea (see Jamison,71 AD3d at 1436). In any event, defendant's contention is without merit. "[T]here is norequirement that defendant recite the underlying facts of the crime to which he [or she] ispleading guilty" (People v Bailey,49 AD3d 1258, 1259 [2008], lv denied 10 NY3d 932 [2008]; see People vWilliams, 291 AD2d 891, 893 [2002], lv denied 98 NY2d 656 [2002]).
Finally, defendant contends that the court failed to conduct a sufficient inquiry beforedenying her motion to withdraw her guilty plea and abused its discretion in denying her motion.We reject those contentions. First, "[t]he defendant should be afforded [a] reasonable opportunityto present his [or her] contentions [in support of the motion] and the court should be enabled tomake an informed determination" based thereon (People v Tinsley, 35 NY2d 926, 927[1974]; see People v Strasser, 83AD3d 1411 [2011]; People vHarris, 63 AD3d 1653 [2009], lv denied 13 NY3d [*2]744 [2009]), and the record establishes that such was the case here.Second, with respect to the merits of the motion, defendant's claim of innocence in supportthereof was belied by her statements during the plea colloquy (see People v Gumpton, 81 AD3d1441, 1442 [2011]; People vNichols, 77 AD3d 1339, 1340 [2010], lv denied 15 NY3d 954 [2010]). "Thecourt was presented with a credibility determination when defendant moved to withdraw [her]plea and advanced [her] belated claim[ ] of innocence . . . , and it did not abuse itsdiscretion in discrediting th[at] claim[ ]" (People v Sparcino, 78 AD3d 1508, 1509 [2010], lv denied16 NY3d 746 [2011]). Present—Smith, J.P., Centra, Carni, Green and Martoche, JJ.