| People v Miles |
| 2016 NY Slip Op 03217 [138 AD3d 1350] |
| April 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael R. Miles, Appellant. |
Hinman, Howard & Kattell LLP, East Greenbush (Linda B. Johnson ofcounsel), for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered April 17, 2013, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the second degree.
In satisfaction of a six-count indictment, defendant pleaded guilty to attemptedburglary in the second degree. Prior to sentencing, defendant obtained new counsel andmoved to withdraw his plea, primarily asserting that he was confused as to the sentenceto be imposed under the plea agreement. County Court denied the motion and, inaccordance with the plea agreement, sentenced defendant, as a second felony offender, toa prison term of four years, to be followed by five years of postrelease supervision.Defendant now appeals.
We affirm. Defendant contends that his plea was not knowing, voluntary andintelligent because he was confused as to the sentence to be imposed. During the pleaallocution, County Court expressly reviewed the terms of the plea agreement, includingthe agreed-upon sentence, confirmed that defendant agreed to such terms and explainedthe rights that defendant was forgoing by pleading guilty. In response to the court'sinquiries, defendant denied that he had been forced or threatened to accept the plea,agreed that he was freely and voluntarily pleading guilty after conferring with counseland thereafter admitted his guilt. While defendant asked whether he could participate in aprogram to obtain a reduced sentence or early release, County Court dispelled anyconfusion by restating the agreed-upon sentence, explaining the law relating [*2]to early release and affirmatively stating that defendantwould not receive a reduced sentence at a later date. Accordingly, we conclude thatdefendant's plea was knowing, voluntary and intelligent (see People v Miner, 120 AD3d1449, 1449-1450 [2014]; People v White, 85 AD3d 1493, 1494 [2011]).
We also are unpersuaded by defendant's assertion that County Court failed tosufficiently investigate the allegations raised in his motion to withdraw his guilty plea.The nature and extent of the fact-finding measures required to determine a motion towithdraw a plea lie within the discretion of the trial court (see People v Tinsley,35 NY2d 926, 927 [1974]; People v Saunders, 127 AD3d 1420, 1421 [2015], lvdenied 26 NY3d 935 [2015]). An evidentiary hearing is rarely necessary and" 'is required only where the record presents a genuine question of fact as to. . . voluntariness' " (People v Atkinson, 58 AD3d 943, 943[2009], quoting People v De Fabritis, 296 AD2d 664, 664 [2002], lvdenied 99 NY2d 557 [2002]; see People v Mitchell, 21 NY3d 964, 966 [2013]). Here,County Court acknowledged defendant's assertion that he was confused about thesentence to be imposed, permitted defendant an opportunity to explain the reason for hisconfusion and read relevant portions of defendant's plea allocution into the record.Inasmuch as defendant's assertions were patently contradicted by the minutes of his pleaallocution, County Court did not abuse its discretion in denying the motion withoutconducting a more extensive inquiry (see People v O'Neill, 116 AD3d 1240, 1241 [2014]; People v Pittman, 104 AD3d1027, 1027-1028 [2013], lv denied 21 NY3d 1008 [2013]; People v Singletary, 51 AD3d1334, 1334 [2008], lv denied 11 NY3d 741 [2008]).
Finally, defendant claims that he received ineffective assistance of counsel inconnection with his motion to withdraw his plea. While defense counsel indicated toCounty Court that he did not feel comfortable making a motion to withdraw defendant'splea, counsel's statements were made weeks before he ultimately submitted a motion ondefendant's behalf and, at the time County Court heard the motion, counsel did notinterfere with or affirmatively undermine the allegations raised. Moreover, the argumentsadvanced by defendant in the motion were not the same arguments that counsel hadpreviously commented upon and, given the passage of time and the factual inquiryundertaken by the court, it does not appear that counsel's statements "influence[d] CountyCourt's determination in any meaningful way" (People v Curry, 123 AD3d 1381, 1383 [2014], lvdenied 25 NY3d 950 [2015]; see People v Wester, 82 AD3d 1677, 1678 [2011], lvdenied 17 NY3d 803 [2011]). Under these circumstances, we do not find thatcounsel took a position that was adverse to defendant (see People v Sylvan, 108AD3d 869, 871 [2013], lv denied 22 NY3d 1091 [2014]; People v Pimentel, 108 AD3d861, 863 [2013], lv denied 21 NY3d 1076 [2013]; compare People v McCray, 106AD3d 1374, 1375 [2013]).
Garry, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.