| People v Carter-Doucette |
| 2015 NY Slip Op 00068 [124 AD3d 1323] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBrenda Carter-Doucette, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
David W. Foley, District Attorney, Mayville (Joseph M. Calimeri of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered August 12, 2013. The judgment convicted defendant, upon her plea of guilty, ofcriminal sale of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty ofcriminal sale of a controlled substance in the fifth degree (Penal Law§ 220.31), defendant contends that County Court erred in summarilydenying her motion to withdraw her plea and in failing to assign her new counsel beforemaking that determination. With respect to defendant's motion to withdraw her plea, wenote that defendant indicated at sentencing that she was not ready to proceed and wasseeking "a lesser plea." Defendant asserted that she was not able to review the People'sdiscovery until after she had pleaded guilty and that she had therefore accepted a greatersentence than was warranted by the evidence in the People's case. The court respondedthat defendant would not receive a reduced plea and, if she moved to withdraw her pleain order to preserve the issue for appeal, the motion would be denied. Defendantsubsequently moved to withdraw her plea, and the court denied the motion. We concludethat the court thereby afforded defendant the requisite "reasonable opportunity to present[her] contentions" (People v Tinsley, 35 NY2d 926, 927 [1974]; see People v Walker, 114AD3d 1257, 1258 [2014], lv denied 23 NY3d 1044 [2014]; People v Rossborough, 105AD3d 1332, 1333 [2013], lv denied 21 NY3d 1045 [2013]). Furthermore," 'a guilty plea may not be withdrawn absent some evidence or claim ofinnocence, fraud or mistake in its inducement' " (People v Nichols, 302AD2d 954, 954 [2003], lv denied 99 NY2d 657 [2003]), and defendant made nosuch showing here. Indeed, defendant is not entitled to withdraw her plea "merelybecause [she] discovers . . . that [her] calculus misapprehended the qualityof the [People's] case" (People v Jones, 44 NY2d 76, 81 [1978], cert denied439 US 846 [1978], quoting Brady v United States, 397 US 742, 757 [1970];see People v Murdock, 27AD3d 1170, 1171 [2006]).
With respect to defendant's contention that the court should have assigned newcounsel before denying her motion to withdraw her plea, we note that defendant neversought new counsel, but contends for the first time on appeal that she was entitled to newcounsel because she and her lawyer disagreed about her access to discovery materials inopen court such that her lawyer took a position that was adverse to her interests.Defendant's contention that she was denied access to discovery materials is "belied by[her] statements during the plea colloquy," however, wherein she agreed that she hadsufficient opportunity to review the plea with defense counsel (People v Farley, 34 AD3d1229, 1230 [2006], lv denied 8 NY3d 880 [2007]). Moreover, we note inany event that the record demonstrates that the court's " 'rejection of [the] motionwas not influenced by' [any] statements" made by defense counsel (People v Wester, 82 AD3d1677, 1678 [2011], lv denied 17 NY3d 803 [2011]; see People vThaxton, 309 AD2d 1255, 1256 [2003], lv denied 1 NY3d 581 [2003];People v Coleman, 294 AD2d 843, 843 [2002]). Present—Scudder, P.J.,Centra, Fahey, Lindley and DeJoseph, JJ.