| People v Pittman |
| 2013 NY Slip Op 01879 [104 AD3d 1027] |
| March 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AbdusSa'Bour Pittman, Formerly Known as Henry E. Pittman Jr.,Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered November 14, 2011, convicting defendant upon his plea of guilty of thecrime of promoting prison contraband in the first degree.
Defendant pleaded guilty to an indictment charging him with promoting prisoncontraband in the first degree with a commitment that County Court would sentence himas a second felony offender to a prison term not to exceed 1¾ to 3½ years.Prior to sentencing, defense counsel was relieved and substitute counsel was assigned.Thereafter, defendant moved pursuant to CPL 220.60 (3) to withdraw his plea. The courtdenied defendant's motion. County Court thereafter sentenced defendant to a prison termof 1¾ to 3½ years and defendant now appeals.[FN*][*2]
Defendant's sole argument on appeal is thatCounty Court improperly denied his motion to withdraw the plea without providing himan adequate opportunity to be heard. We disagree. Whether to grant a motion towithdraw a plea rests within the sound discretion of the trial court, and a hearing is onlyrequired in rare instances (seePeople v Hayes, 71 AD3d 1187, 1188 [2010], lv denied 15 NY3d 852[2010]; People v Davis, 250 AD2d 939, 940 [1998]). In this case, County Courtassigned counsel to represent defendant and a written motion to withdraw was submitted.Defendant was afforded a "reasonable opportunity to present his contentions" (Peoplev Tinsley, 35 NY2d 926, 927 [1974]; see People v Fiumefreddo, 82 NY2d536, 543-544 [1993]), and nothing raised in his motion papers warranted a hearing. Thecourt explained its reasons for denying the motion in a detailed decision explaining thatthe motion was denied because defendant's arguments were belied by the record of theplea proceeding, wherein defendant admitted to conduct constituting the crime,acknowledged that he understood the plea and had sufficient time to discuss the matterwith counsel, had not been coerced into pleading guilty and was doing so freely andvoluntarily. Under these circumstances, we find no abuse of County Court's discretion indenying defendant's motion without a hearing (see People v Hayes, 71 AD3d at1188; People v Branton, 35AD3d 1035, 1036 [2006], lv denied 8 NY3d 982 [2007]).
Rose, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The notice of appealstates November 7, 2011 as the date of the judgment from which the appeal is taken.However, November 7, 2011 is the date of the order denying defendant's motion towithdraw the plea and the notice of appeal purports to appeal from the judgment ofconviction and each and every intermediate order. In the interest of justice, we willexercise our discretion to treat the notice of appeal as a valid appeal from the judgmentof conviction rendered on November 14, 2011 (see CPL 460.10 [6]).