| People v Walker |
| 2014 NY Slip Op 01052 [114 AD3d 1257] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Calvin Walker, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered December 17, 2009. The judgment convicted defendant, upon his plea of guilty,of burglary in the first degree and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of burglary in the first degree (Penal Law § 140.30 [4]) and robbery in the firstdegree (§ 160.15 [4]), defendant contends that County Court erred in failing to askhim at sentencing why he wished to withdraw his guilty plea. We reject that contention.Where, as here, "a defendant moves to withdraw a guilty plea, the nature and extent ofthe fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motionis made" (People v Brown,14 NY3d 113, 116 [2010] [internal quotation marks omitted]; see People v Mitchell, 21NY3d 964, 966 [2013]). "Only in the rare instance will a defendant be entitled to anevidentiary hearing; often a limited interrogation by the court will suffice" (People vTinsley, 35 NY2d 926, 927 [1974]). "The defendant should be afforded reasonableopportunity to present his contentions" (id.; see People v Rossborough, 105 AD3d 1332, 1333 [2013],lv denied 21 NY3d 1045 [2013]; People v Zimmerman, 100 AD3d 1360, 1362 [2012], lvdenied 20 NY3d 1015 [2013]).
Here, during the plea colloquy, defendant admitted his involvement in the crimes inquestion, which involved a home invasion robbery and a separate armed robberycommitted the following day, and waived his right to appeal. In return, the courtpromised to sentence defendant to concurrent determinate terms of imprisonment of 18years, plus a period of postrelease supervision. At sentencing, however, defense counselstated that defendant wished to withdraw his plea, and that she had instructed him that aplea withdrawal was something that he needed to raise with the court. The court turned todefendant, who said "Yes. I withdraw my plea." The court asked defendant whether therewas anything else he wished to say, whereupon defendant answered "No." The court thendenied defendant's "request" to withdraw his plea and asked him if he wished to sayanything before the negotiated sentence was imposed. Defendant availed himself of thatopportunity, stating that he had not received any "information" about his case, and that hepreferred to go to trial "rather than settle for 18, [be]cause that's a long time forsomething I didn't do." The record therefore establishes that defendant was afforded areasonable opportunity to present his contentions. We note that if, as defendant contends,there is a legitimate basis for withdrawal of his plea, he may seek relief in a motionpursuant to CPL 440.10.
Finally, we reject defendant's contention that his sentence is unduly harsh and severe.Present—Scudder, P.J., Fahey, Peradotto, Lindley and Sconiers, JJ.