| People v Leach |
| 2014 NY Slip Op 05267 [119 AD3d 1429] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vRaymond L. Leach, Jr., Also Known as Raymond L. Leach,Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered April 11, 2013. The judgment convicted defendant, upon his plea of guilty, ofcriminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty ofcriminal contempt in the first degree (Penal Law § 215.51 [b] [vi]),defendant contends that his plea was not knowingly, intelligently, and voluntarily enteredand, thus, that County Court erred in denying his motion to withdraw his plea. We rejectthat contention. "Permission to withdraw a guilty plea rests solely within the court'sdiscretion . . . , and refusal to permit withdrawal does not constitute anabuse of that discretion unless there is some evidence of innocence, fraud, or mistake ininducing the plea" (People v Robertson, 255 AD2d 968, 968 [1998], lvdenied 92 NY2d 1053 [1999]; see People v Zimmerman, 100 AD3d 1360, 1361 [2012],lv denied 20 NY3d 1015 [2013]). Here, we perceive no abuse of discretion.
We conclude that "[d]efendant's contention that he was pressured into accepting theplea is belied by his statements during the plea proceedings" (People v Garner, 86 AD3d955, 955 [2011]; see generally Zimmerman, 100 AD3d at 1361-1362). Wefurther conclude that, "[t]o the extent that defendant contends that defense counsel wasineffective because he coerced defendant into pleading guilty, that contention is [also]belied by defendant's statement during the plea colloquy that the plea was not the resultof any . . . coercion" (People v Campbell, 62 AD3d 1265, 1266 [2009], lvdenied 13 NY3d 795 [2009]).
Defendant contends that his guilty plea was not knowing, intelligent and voluntarybecause the court failed to advise him of the potential periods of incarceration for anenhanced sentence based upon a postplea arrest, but he failed to preserve that contentionfor our review inasmuch as he failed to move to withdraw the plea or to vacate thejudgment of conviction on that ground (see People v Halsey, 108 AD3d 1123, 1124 [2013]). Wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [3] [c]).
[*2] Contrary to defendant's contention, "[a]lthough [his]initial statements . . . during the factual allocution may have negated [an]essential element of [the crime of criminal contempt in the first degree], his furtherstatements removed any doubt" that he had committed that crime (People v Trinidad, 23 AD3d1060, 1061 [2005], lv denied 6 NY3d 760 [2005]; see People v Thomas, 56 AD3d1240, 1240 [2008], lv denied 12 NY3d 763 [2009]).
We agree with defendant that his valid waiver of the right to appeal does notencompass the challenge to the severity of the sentence inasmuch as the court" 'failed to advise defendant of the potential periods of incarceration that couldbe imposed, including the potential periods of incarceration for an enhanced sentence. . . , before he waived his right to appeal' " (People v Scott, 101 AD3d1773, 1774 [2012], lv denied 21 NY3d 1019 [2013]; see People v Huggins, 45AD3d 1380, 1380-1381 [2007], lv denied 9 NY3d 1006 [2007]; cf. People v Jackson, 34 AD3d1318, 1319 [2006], lv denied 8 NY3d 923 [2007]). We neverthelessconclude that the sentence is not unduly harsh or severe. Present—Smith, J.P.,Centra, Carni, Whalen and DeJoseph, JJ.