| People v Massia |
| 2015 NY Slip Op 06736 [131 AD3d 1280] |
| September 3, 2015 |
| Appellate Division, Third Department |
[*1](September 3, 2015)
| The People of the State of New York,Respondent, v Richard J. Massia, Appellant. |
G. Scott Walling, Schenectady, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martinieau Jr. ofcounsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Essex County (Meyer,J.), rendered June 6, 2013, convicting defendant upon his plea of guilty of the crimes ofattempted burglary in the third degree and criminal possession of a forged instrument inthe third degree.
In satisfaction of three indictments and other pending charges, defendant pleadedguilty to the reduced charges of attempted burglary in the third degree and criminalpossession of a forged instrument in the third degree and waived his right to appeal.Pursuant to the plea agreement, County Court conditionally committed to sentencedefendant, who is a second felony offender, to a prison term of 1
Defendant contends that County Court abused its discretion in denying his motion towithdraw his plea. Specifically, defendant asserts that his plea was not knowing,voluntary and intelligent because he was unaware of the full terms of the plea agreement,particularly with [*2]respect to restitution. Althoughreview of the voluntariness of defendant's plea is not precluded by his waiver of the rightto appeal and has been preserved by his unsuccessful motion to withdraw his plea (see People v Colon, 122 AD3d956, 957 [2014]), we find his challenge to be without merit. Whether to permit adefendant to withdraw his or her plea of guilty "is left to the sound discretion of CountyCourt, and [withdrawal] will generally not be permitted absent some evidence ofinnocence, fraud or mistake in its inducement" (People v Curry, 123 AD3d 1381, 1383 [2014], lvdenied 25 NY3d 950 [2015] [internal quotation marks and citations omitted]). Here,a review of the record confirms that County Court informed defendant of the terms of theplea agreement, defendant executed a two-page document that set forth the terms of theplea agreement, which listed the victims of defendant's crimes and specifically stated thatrestitution would be ordered "for ALL burglaries—charged or uncharged."Furthermore, in response to inquiries from the court, defendant acknowledged that hehad enough time to discuss the plea agreement with defense counsel, was satisfied withthe representation provided, understood the terms of the plea agreement and wasvoluntarily pleading guilty to engaging in conduct that constituted the crimes at issue. Asthere is nothing in the record that reflects any misunderstanding by defendant as to theplea agreement, we find that County Court did not abuse its discretion in summarilydenying defendant's motion to withdraw his plea (see People v Barton, 126 AD3d 1238, 1239 [2015];People v Curry, 123 AD3d at 1383; People v Colon, 122 AD3d at957).
To the extent that defendant challenges the imposition of consecutive sentences, weagree with defendant, and the People concede, that County Court erred in directing thatthe sentence imposed on the forged instrument conviction run consecutively to theindeterminate sentence imposed on the attempted burglary conviction. Pursuant to PenalLaw § 70.35, defendant's definite sentence merges with and is satisfied byhis service of the indeterminate sentence (see People v Leabo, 84 NY2d 952, 953[1994]; People v Piznarski,113 AD3d 166, 182 n 11 [2013], lv denied 23 NY3d 1041 [2014]).Nevertheless, as the Department of Corrections and Community Supervision mustcalculate the period of incarceration in accordance with Penal Law § 70.35,no action by this Court is necessary (see People v Piznarski, 113 AD3d at 182 n11).
Lahtinen, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.