| People v Martin |
| 2016 NY Slip Op 01009 [136 AD3d 1110] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTimothy Martin, Appellant. |
William J. Better, Kinderhook, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Rensselaer County(Young, J.), rendered September 27, 2013, convicting defendant upon his plea of guiltyof the crime of attempted burglary in the third degree.
Defendant waived indictment and pleaded guilty to a superior court informationcharging him with attempted burglary in the third degree. Under the terms of the pleaagreement, defendant agreed to enter into the Judicial Diversion Program with theunderstanding that, upon successful completion of the program and a period ofprobation, he could be presented with the opportunity to withdraw his guilty plea andplea to a misdemeanor. The agreement further provided that if defendant was terminatedfrom, or failed to complete, the program, County Court would sentence him, as a secondfelony offender, to a prison term of 2 to 4 years. As a result of testing positive for drugsand then absconding to Florida for over a year, defendant did not complete the program.County Court denied defendant's subsequent motion to withdraw his guilty plea and, inaccordance with the plea agreement, sentenced him to a prison term of 2 to 4 years.Defendant appeals, and we affirm.
"Whether to allow withdrawal of a guilty plea is left to the sound discretion ofCounty Court, and will generally not be permitted absent 'some evidence of innocence,fraud or mistake in its inducement' " (People v Mitchell, 73 AD3d 1346, 1347 [2010], lvdenied 15 NY3d 922 [2010], quoting People v Carmona, 66 AD3d 1240, 1241 [2009], lvdenied 14 NY3d 799 [2010]). In support of his motion, defendant submitted his ownaffidavit and an affidavit from the victim—his mother—to demonstrate thathe had permission to enter the victim's residence [*2]andhad attempted to take only items that belonged to him. However, defendant's assertionswere contradicted by the supporting depositions given by the victim and the victim'sneighbor on the day of the crime, as well as his own admissions during the pleaallocution, including that he had "entered [the victim's] residence without permission." Inparticular, the victim stated that she had "kicked" defendant out of her house, that shewas trying to obtain an order of protection against him and that the items that defendanthad attempted to steal belonged to her. The victim's neighbor alleged that defendantgained entry into the victim's residence with the use of a ladder. Moreover, despitedefendant's assertion to the contrary, there was no indication in the record that he wasunder the influence of drugs at the time he entered his plea and, in fact, records from hisremote alcohol monitoring device demonstrated that he passed both of the testsadministered to him on that day. Under these circumstances, we cannot say that CountyCourt abused its discretion in denying defendant's motion to withdraw his guilty plea (see People v Wares, 124 AD3d1079, 1081 [2015], lv denied 25 NY3d 993 [2015]; People v Griffin, 89 AD3d1235, 1236-1237 [2011]).
Lastly, in light of defendant's "fail[ure] to abide by the favorable conditions of theplea" and his considerable criminal history, we find no abuse of discretion orextraordinary circumstances warranting a reduction of the lawful sentence in the interestof justice (People vFeliciano, 54 AD3d 1131, 1132-1133 [2008]; see People v Eggsware, 90AD3d 1231, 1234 [2011], lv denied 18 NY3d 923 [2012]).
McCarthy, J.P., Garry, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.