| People v Davis |
| 2015 NY Slip Op 05325 [129 AD3d 1613] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPeter Davis, Appellant. |
Cara A. Waldman, Fairport, for defendant-appellant.
Valerie G. Gardner, District Attorney, Penn Yan (Megan P. Dadd of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), renderedSeptember 10, 2013. The judgment convicted defendant, upon his plea of guilty, ofdriving while ability impaired by drugs.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of driving while ability impaired by drugs (Vehicle and Traffic Law§ 1192 [4]). Contrary to defendant's contention, the record establishes thathe validly waived his right to appeal both orally and in writing before pleading guilty.The record establishes that County Court conducted " 'an adequate colloquy toensure that the waiver of the right to appeal was a knowing and voluntarychoice' " (People vGlasper, 46 AD3d 1401, 1401 [2007], lv denied 10 NY3d 863 [2008];see People vEstevez-Santos, 114 AD3d 1174, 1175 [2014], lv denied 23 NY3d 1019[2014]), and that "defendant understood that the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]).
Defendant contends that the court abused its discretion in denying his motion towithdraw his plea of guilty, which was premised on his allegations that he was under theinfluence of medication that impacted his ability to understand the plea proceedings andthat, therefore, the plea was not knowing, intelligent and voluntary. That contentionsurvives defendant's valid waiver of the right to appeal (see People v Lawrence, 118AD3d 1501, 1501 [2014], lv denied 24 NY3d 1220 [2015]; People v Torres, 117 AD3d1497, 1498 [2014], lv denied 24 NY3d 965 [2014]), and he preserved thatcontention for our review by moving to withdraw the plea (see People v Lopez,71 NY2d 662, 665 [1988]). We nevertheless reject defendant's contention. "Permissionto withdraw 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, 1361 [2012], lv denied 20 NY3d 1015 [2013]). Inasmuch asdefendant tendered no such evidence on his motion, we perceive no abuse ofdiscretion.
We reject defendant's further contention that the court should have conducted ahearing on his motion. Where, as here, "a defendant moves to withdraw a guilty plea, thenature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judgeto whom the motion is made" (People v Brown, 14 NY3d 113, 116 [2010] [internalquotation marks omitted]; seePeople v Mitchell, 21 NY3d 964, 966 [2013]). "Only in the rare instance will adefendant be entitled to an evidentiary hearing" (People v Tinsley, 35 NY2d 926,927 [1974]). Here, we conclude that defendant was afforded a reasonable opportunity topresent his contention that, because of the influence of his medication, his plea was notknowing, intelligent, and voluntary (see People v Walker, 114 AD3d 1257, 1258 [2014], lvdenied 23 NY3d 1044 [2014]). We note, however, that defendant failed tosubstantiate his contention inasmuch as he submitted only his self-serving statements andhis attorney's assertions made upon information and belief (see People v Ashley, 71 AD3d1286, [*2]1287 [2010], affd 16 NY3d 725[2011]; People v Watkins,107 AD3d 1416, 1417 [2013], lv denied 22 NY3d 959 [2013]). Furthermore,"[d]efendant's contention is belied by the record of the plea proceeding, whichestablishes that his factual allocution was lucid and detailed and that defendantunderstood both the nature of the proceedings and that he was waiving various rights"(People v Hayes, 39 AD3d1173, 1175 [2007], lv denied 9 NY3d 923 [2007]). In light of thosecircumstances, we cannot conclude that this case is one of those "rare instance[s]" inwhich defendant was entitled to a hearing on his motion (Tinsley, 35 NY2d at927).
Finally, defendant's valid waiver of the right to appeal encompasses his furthercontention that the sentence is unduly harsh and severe (see People v Rodman, 104AD3d 1186, 1188 [2013], lv denied 22 NY3d 1202 [2014]; see generallyLopez, 6 NY3d at 255-256). Present—Smith, J.P., Carni, Lindley, Valentinoand Whalen, JJ.