| People v McKinney |
| 2014 NY Slip Op 08069 [122 AD3d 1083] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJames McKinney, Appellant. |
G. Scott Walling, Schenectady, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Brandon P. Rathbun of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered August 29, 2013, convicting defendant upon his plea of guiltyof the crime of attempted burglary in the second degree.
In connection with the burglary of a residence, defendant was indicted on charges ofburglary in the third degree, conspiracy in the fourth degree, grand larceny in the fourthdegree and criminal mischief in the fourth degree. At arraignment, the People moved toamend the first two counts of the indictment (see CPL 200.70). County Courtgranted the motion, amending the first count to charge burglary in the second degree andamending the second count so the narrative portion listed burglary in the second degreeas the crime that defendant allegedly conspired to commit. Pursuant to a plea agreement,defendant pleaded guilty to attempted burglary in the second degree in satisfaction of theindictment. At sentencing, defendant moved to withdraw his plea. The court denied thatmotion and imposed the agreed-upon sentence of 3
By pleading guilty, defendant forfeited his argument that County Court erred inamending the indictment, which did not create a jurisdictional defect (see People v Torres, 117 AD3d1497, 1498 [2014], lv denied 24 NY3d 965 [2014]; People v Stokely, 49 AD3d966, 968 [2008]; People v Anson, 272 AD2d 639, 640 [2000]; People vPriester, 255 AD2d 833, 834 [1998]; see also People v Hansen, 95 NY2d227, 231-232 [2000]; People v Beattie, 80 NY2d 840, 842 [1992]).
County Court did not err in denying defendant's motion to withdraw his plea. Trialcourts generally have broad discretion when considering motions to withdraw a plea, andsuch motions generally will not be granted absent evidence of fraud, innocence ormistake in the inducement (seePeople v Mitchell, 73 AD3d 1346, 1347 [2010], lv denied 15 NY3d 922[2010]). Hearings are rarely granted on such motions, as they are generally onlynecessary where the record raises a legitimate question about the voluntariness of theplea (see People v Brown,14 NY3d 113, 116 [2010]). Nothing in the record here indicates involuntariness.While defendant now argues that the court should have assigned him new counsel tosubmit a written motion, defendant did not make allegations against his counsel, such ascoercion or ineffective assistance, as a ground to withdraw the plea (compare People v Williams, 35AD3d 1085, 1086-1087 [2006]). Defense counsel informed the court of defendant'sdesire to move to withdraw his plea and the grounds therefor, with no indication thatcounsel was unable to properly represent him. Defendant did not speak up at that time,nor did he make a statement to the court when given the opportunity. Inasmuch as thestated ground—that defendant had reviewed additional documents and nowbelieved that the People would be unable to prove their case against him—was nota legitimate basis for withdrawal of a plea, County Court did not err in denying themotion without a hearing (see People v King, 114 AD2d 650, 652 [1985], lvdenied 67 NY2d 653 [1986]; compare People v Williams, 35 AD3d at1086-1087).
Stein, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.