| People v Arnold |
| 2013 NY Slip Op 00522 [102 AD3d 1061] |
| January 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJerome Arnold, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Tompkins County(Rowley, J.), rendered June 3, 2011, convicting defendant upon his plea of guilty of thecrime of assault in the second degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to assault in thesecond degree in full satisfaction of a five-count indictment, and was to be sentenced to aprison term of two years to be followed by three years of postrelease supervision. Prior tosentencing, defendant moved pro se to withdraw his guilty plea, alleging that it was theresult of duress. County Court denied defendant's motion without a hearing andsentenced him as agreed. Defendant now appeals.
Whether a defendant should be permitted to withdraw his or her guilty plea is adetermination that rests within the sound discretion of the trial court, and a hearing iswarranted only in rare instances (see People v Hayes, 71 AD3d 1187, 1188 [2010], lvdenied 15 NY3d 852 [2010]; People v Wyant, 47 AD3d 1068, 1069 [2008], lvdenied 10 NY3d 873 [2008]). Generally, a plea may not be withdrawn absentevidence of innocence, fraud or mistake in the inducement (see People v Waters, 80 AD3d1002, 1003 [2011], lv denied 16 NY3d 858 [2011]; People v Carmona, 66 AD3d1240, 1241 [2009], lv denied 14 NY3d 799 [2010]). Here, the recordreflects that defendant's plea was informed and voluntary. County Court fullyadmonished [*2]defendant of the rights he was forfeitingby pleading guilty and stressed that he was under no obligation to enter the plea.Defendant affirmed that he understood and wanted to proceed with the plea. Moreover,County Court engaged defendant in a thorough factual allocution whereby heunequivocally admitted to conduct constituting the crime of assault in the second degreeas charged in the indictment. Inasmuch as nothing in the record casts doubt upondefendant's guilt and defendant's postplea assertions of innocence and undue pressurefrom counsel are wholly unsubstantiated, County Court properly denied the motion towithdraw the plea without a hearing (see People v Waters, 80 AD3d at 1003; People v Shovah, 67 AD3d1257, 1258 [2009], lv denied 14 NY3d 773 [2010]; People vCarmona, 66 AD3d at 1241). Finally, counsel's failure to join in the motion towithdraw the plea did not require County Court to assign new counsel (see People v Murray, 25 AD3d911, 912 [2006], lv denied 6 NY3d 896 [2006]; People v Lindsey,283 AD2d 782, 782 [2001], lv denied 96 NY2d 940 [2001]).
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.