| People v Beekman |
| 2015 NY Slip Op 09570 [134 AD3d 1355] |
| December 24, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBenjamin Beekman, Appellant. |
Carolyn B. George, Albany, for appellant.
Robert M. Carney, Schenectady (Peter H. Willis of counsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered March 10, 2014, convicting defendant upon his plea of guilty of thecrime of burglary in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to burglary in thethird degree and waived his right to appeal. Prior to sentencing, defendant was assignednew counsel and moved to withdraw his plea. County Court denied the motion without ahearing and, thereafter, sentenced defendant as a second felony offender, in accordancewith the plea agreement, to a prison term of 3 to 6 years. Defendant appeals.
We are unpersuaded by defendant's contention that County Court erred in denyinghis motion to withdraw his plea without a hearing. "The decision to permit withdrawal ofa guilty plea is a matter within the trial court's sound discretion, and a hearing is requiredonly where the record presents a genuine question of fact as to its voluntariness" (People v Shurock, 83 AD3d1342, 1343 [2011] [internal quotation marks and citations omitted]). "Only in therare instance will a defendant be entitled to an evidentiary hearing" (People v Baret, 11 NY3d31, 33 [2008] [internal quotation marks and citation omitted]).
Here, in support of the motion to withdraw, defendant and his newly assigneddefense counsel submitted affidavits indicating that the motion was based upondefendant not fully understanding the consequences of his plea and being subjected toundue duress as a result of [*2]defense counsel's failureto both inform him of a preindictment plea offer and sufficiently explore defendant'seligibility to participate in a drug treatment program. Defendant's contention that defensecounsel failed to informed him of a preindictment plea offer is belied by the record,which reveals that defendant rejected such offer. Further, the record establishes thatdefense counsel requested that defendant be permitted to participate in a drug treatmentprogram, but that defendant was ineligible due to his prior violent felony conviction.Review of the plea colloquy establishes that defendant admitted his guilt, acknowledgedthat he was not threatened or coerced into pleading guilty, understood the proceedingsand his rights, had sufficient time to discuss the plea with defense counsel and wassatisfied with counsel's representation. In view of the foregoing, we find no abuse ofdiscretion by County Court in denying the motion without a hearing, as there was nobasis to warrant further inquiry regarding the voluntariness of the plea (see People vBaret, 11 NY3d at 34; People v Singletary, 51 AD3d 1334, 1334 [2008], lvdenied 11 NY3d 741 [2008]).
Also without merit is defendant's contention that he was deprived of the effectiveassistance of counsel. "In the context of a guilty plea, a defendant has been affordedmeaningful representation when he or she receives an advantageous plea and nothing inthe record casts doubt upon the apparent effectiveness of counsel" (People v Nieves, 89 AD3d1285, 1286 [2011] [internal quotation marks and citation omitted]; see People v Vonneida, 130AD3d 1322, 1322 [2015]). Here, in addition to defendant acknowledging that hewas satisfied with defense counsel's representation, the record reflects that defensecounsel pursued pretrial motions and, despite defendant's contention to the contrary,negotiated a favorable plea agreement on defendant's behalf that resulted in anappreciable reduction in the potential prison sentence that he might have otherwisereceived had he been sentenced as a persistent felony offender. Under thesecircumstances, we find that defendant received meaningful representation (see People v Wren, 119 AD3d1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; People v Evans, 81 AD3d1040, 1041 [2011], lv denied 16 NY3d 894 [2011]).
Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.