| People v Watkins |
| 2013 NY Slip Op 04147 [107 AD3d 1416] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vGregory Watkins, Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (Christopher Bokelman of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), renderedJanuary 26, 2012. The judgment convicted defendant, upon his plea of guilty, of burglaryin the first degree (two counts), assault in the second degree and assault in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of two counts of burglary in the first degree (Penal Law § 140.30 [2]), andone count each of assault in the second degree (§ 120.05 [1]) and assault in thethird degree (§ 120.00 [1]). Contrary to defendant's contention, County Court didnot abuse its discretion in denying his motion to withdraw the plea (see People v Wolf, 88 AD3d1266, 1266-1267 [2011], lv denied 18 NY3d 863 [2011]; People v Tracy, 77 AD3d1402, 1403 [2010], lv denied 16 NY3d 746 [2011]; see generally People v Dozier,74 AD3d 1808, 1808 [2010], lv denied 15 NY3d 804 [2010]). "Permissionto withdraw a guilty plea rests solely within the court's discretion . . . , andrefusal to permit withdrawal does not constitute an abuse of that discretion unless there issome evidence of innocence, fraud, or mistake in inducing the plea" (People vRobertson, 255 AD2d 968, 968 [1998], lv denied 92 NY2d 1053 [1999]; see People v Zimmerman, 100AD3d 1360, 1361 [2012], lv denied 20 NY3d 1015 [2013]). Defendantcontended in support of his motion that he was induced to plead guilty based on theoriginally scheduled sentencing date, which allegedly afforded him time to post bail priorto sentencing, and that the court thereafter advanced the date of sentencing such that hewas unable to post bail. Inasmuch as the date on which sentencing was to occur was notpart of the plea agreement, we conclude that the court did not abuse its discretion indenying defendant's motion to withdraw his plea on the grounds of duress,misrepresentation or fraud (see CPL 220.60 [3]; People v Todd, 276AD2d 913, 914 [2000]). We reject defendant's further contention that, when the courtadvanced the date for sentencing, it thereby imposed an enhanced sentence or added acondition to the plea agreement such that defendant should have been allowed towithdraw his plea (cf. People vGordon, 53 AD3d 793, 794 [2008]; People v Armstead, 52 AD3d 966, 967-968 [2008]).
The record does not support defendant's further contention that the court abused itsdiscretion in denying his motion to withdraw the plea on the ground that the plea was notknowing, voluntary and intelligent in view of his having been on medication at the timeof the plea. Defendant failed to submit his own affidavit or any medical evidence tosubstantiate that [*2]contention (see People v Ashley, 71 AD3d1286, 1287 [2010], affd 16 NY3d 725 [2011]; Wolf, 88 AD3d at1266-1267), and in any event it "is belied by the record of the plea proceeding" (People v Hayes, 39 AD3d1173, 1175 [2007], lv denied 9 NY3d 923 [2007]), which establishes thatdefendant understood the nature of the proceedings (see Wolf, 88 AD3d at1267). "Furthermore, to the extent that the contention of defendant that he receivedineffective assistance of counsel survives his plea of guilty" (People v Ellis, 73 AD3d1433, 1434 [2010], lv denied 15 NY3d 851 [2010]), we conclude thatdefendant's contention lacks merit (see People v Culver, 94 AD3d 1427, 1427-1428 [2012],lv denied 19 NY3d 1025 [2012]). Present—Scudder, P.J., Peradotto,Lindley, Valentino and Martoche, JJ.