People v Rouse

2014 NY Slip Op 05378 [119 AD3d 1161]

July 17, 2014

Appellate Division, Third Department

As corrected through Wednesday, August 27, 2014

[*1]

1 The People of the State of New York,Respondent, v Edrick L. Rouse, Appellant.

Abbie Goldbas, Utica, for appellant.

Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.

Egan Jr., J. Appeal from a judgment of the County Court of Chenango County(Revoir Jr., J.), rendered January 7, 2013, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the third degree.

In full satisfaction of a three-count indictment, defendant pleaded guilty to one countof criminal possession of a controlled substance in the third degree in exchange for anegotiated sentence of 31/2 years in prison followed by three years ofpostrelease supervision. During the course of the plea proceeding, defendant requestedthat he be furloughed in order to visit with his children prior to sentencing. When CountyCourt (Sullivan, J.) denied that request, defense counsel—althoughacknowledging that the sought-after furlough was not a term of the pleaagreement—immediately moved to withdraw the plea upon defendant's behalf.This oral motion to withdraw defendant's plea was denied, and the matter was adjournedfor sentencing. Prior thereto, defendant apparently attempted to file a written motion towithdraw his plea and, further, requested a furlough to attend his grandmother's funeral.When the requested furlough was granted, defendant indicated that he would forgo hiswritten application to withdraw his plea and would pursue the initial denial thereof onappeal. County Court (Revoir Jr., J.) thereafter sentenced defendant as a second felonyoffender to the agreed-upon sentence. Defendant now appeals.

[*2] We affirm. "Whether a defendant should be permittedto withdraw his or her plea rests within the sound discretion of the trial court and,generally, such a motion should not be granted absent a showing of innocence, fraud ormistake in the inducement" (People v Barton, 113 AD3d 927, 928 [2014] [internalquotation marks and citations omitted]; see People v Wilson, 101 AD3d 1248, 1249 [2012]). Here,a fair reading of the plea colloquy compels but one conclusion—namely, thatdefendant's requested furlough to visit with his children prior to sentencing was not partand parcel of the plea agreement (compare People v Brown, 14 NY3d 113, 115 [2010]) and,therefore, neither defendant's subjective misunderstanding of that agreement nor hisdisappointment upon learning that his furlough request was denied affords a basis uponwhich to withdraw his plea (see People v Leggett, 163 AD2d 862, 863 [1990]; cf. People v Weiss, 99 AD3d1035, 1039 [2012], lv denied 20 NY3d 1012 [2013]; see generallyPeople v Wilson, 101 AD3d at 1249). Accordingly, defendant's motion in this regardwas properly denied.

To the extent that defendant now challenges the factual sufficiency of his plea, wenote that this claim was not raised in his motion to withdraw his plea. Hence, this issue isnot preserved for our review (see People v Escalante, 16 AD3d 984, 984-985 [2005],lv denied 5 NY3d 788 [2005]). Additionally, the narrow exception to thepreservation requirement was not triggered, "as defendant made no statements during theplea allocution that cast doubt upon his guilt or the voluntariness of his plea, or negated amaterial element of the crime" (People v MacDonald, 113 AD3d 968, 968 [2014]; see People v Harris, 82 AD3d1449, 1449 [2011], lv denied 17 NY3d 953 [2011]). In any event,"defendant was not required to recite the elements of his crime or engage in a factualexposition, as his unequivocal affirmative responses to County Court's questions weresufficient to establish the elements of the crime charged" (People v Smith, 112 AD3d1232, 1233 [2013], lv denied 22 NY3d 1203 [2014] [internal quotationmarks and citation omitted]; seePeople v Shurock, 83 AD3d 1342, 1343 [2011]).

Peters, P.J., Garry, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.