| People v Hamilton |
| 2014 NY Slip Op 08201 [122 AD3d 1439] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Ralik J. Hamilton, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
David W. Foley, District Attorney, Mayville (Patrick E. Swanson of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered January 20, 2012. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), defendant contends that County Court erred in summarilydenying his motion to withdraw his plea. We reject that contention. "Permission towithdraw 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, 1362 [2012], lv denied 20 NY3d 1015 [2013]). " 'Onlyin the rare instance will defendant be entitled to an evidentiary hearing; often a limitedinterrogation by the court will suffice. The defendant should be afforded [a] reasonableopportunity to present his contentions and the court should be enabled to make aninformed determination' " (Zimmerman, 100 AD3d at 1362, quotingPeople v Tinsley, 35 NY2d 926, 927 [1974]). Here, the court "was presented witha credibility determination when defendant moved to withdraw his plea and advanced hisbelated claims of innocence[,] . . . coercion" and ineffective assistance ofcounsel, and the court did not abuse its discretion in discrediting those claims (People v Sparcino, 78 AD3d1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). The record establishesthat defendant understood the consequences of his plea and that he was pleading guilty inexchange for a negotiated sentence that was less than the maximum term ofimprisonment, and we thus conclude that the plea was knowingly and voluntarily entered(see People v Cubi, 104AD3d 1225, 1226-1227 [2013], lv denied 21 NY3d 1003 [2013]).
We further reject defendant's contention that the plea colloquy was factuallyinsufficient. Although defendant did not use the word "guilty" during the colloquy, hefully admitted to the conduct alleged in the superior court information constituting thecrime of criminal possession of a controlled substance in the third degree (see Peoplev Sadness, 300 NY 69, 73 [1949], cert denied 338 US 952 [1950]; cf.People v Bellis, 78 AD2d 1014, 1014 [1980]). Defendant's sentence is not undulyharsh or severe. Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino,JJ.