| People v Henderson |
| 2016 NY Slip Op 02204 [137 AD3d 1670] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent,Vanthony T. Henderson, Jr., Also Known as Butter,Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered September 26, 2012. The judgment convicted defendant, upon his plea ofguilty, of burglary in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon his plea ofguilty of burglary in the second degree (Penal Law § 140.25 [2]), defendantcontends that County Court erred in summarily denying his pro se motion to withdrawhis plea. We agree. In support of his motion, which was made at sentencing, defendantrepeatedly asserted that his attorney advised him before he pleaded guilty that he couldwithdraw his plea at any time prior to sentencing. Although defense counsel respondedthat he advised defendant to plead guilty in order to take advantage of what he believedto be an advantageous plea offer, he did not deny that he told defendant that his pleacould be withdrawn. The court denied the motion without a hearing and imposed thepromised sentence.
It is well settled that permission to withdraw a guilty plea rests largely within thecourt's discretion (see People vBrown, 14 NY3d 113, 116 [2010]), and " 'refusal to permit withdrawaldoes not constitute an abuse of that discretion unless there is some evidence ofinnocence, fraud, or mistake in inducing the plea' " (People v Hamilton, 122 AD3d1439, 1439 [2014]; seePeople v Zimmerman, 100 AD3d 1360, 1362 [2012], lv denied 20 NY3d1015 [2013]). "Only in the rare instance will a defendant be entitled to an evidentiaryhearing" (People v Tinsley, 35 NY2d 926, 927 [1974]). Here, if defendant wasadvised by counsel that he could withdraw his plea prior to sentencing, as he alleged andcounsel did not deny, then his plea was not voluntarily and intelligently entered becauseit was based at least in part upon his mistaken understanding of the law. Under thecircumstances, we conclude that defendant's motion was not "patently insufficient on itsface" to permit the court to deny it summarily (People v Mitchell, 21 NY3d 964, 967 [2013]; see generally People v Smith,122 AD3d 1300, 1301-1302 [2014], lv denied 25 NY3d 1172 [2015]).
We note that our decision in People v Montgomery (63 AD3d 1635 [2009], lvdenied 13 NY3d 798 [2009]) is not to the contrary. The defendant in that caselikewise moved to withdraw his plea, contending that his attorney told him that heretained the right to withdraw his plea at any time prior to sentencing. Although we heldtherein that the court properly denied the motion without a hearing, the record on appealshows that the parties stipulated that, if called as a witness, the defense attorney wouldtestify that he never told defendant that he could withdraw his plea prior to sentencing.We wrote that "[t]he issue whether defense counsel made the alleged statement presenteda credibility issue that the court was entitled to resolve against defendant after affordinghim a reasonable opportunity to be heard" (id. at 1636). Here, there is no suchstipulation, and we therefore do not know what defense counsel would have said if hehad been [*2]asked whether he advised defendant that hecould withdraw his plea. We thus conclude that a hearing is required, and we hold thecase, reserve decision and remit the matter to County Court for that purpose.Present—Whalen, P.J., Centra, Lindley, Troutman and Scudder, JJ.