| People v Noce |
| 2016 NY Slip Op 08632 [145 AD3d 1456] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMatthew V. Noce, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered July 25, 2012. The judgment convicted defendant, upon his plea of guilty, ofassault in the first 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 assault in the first degree (Penal Law § 120.10 [1]), defendantcontends that County Court abused its discretion in denying his motion to withdraw hisplea without a hearing. We agree.
This case arises from an incident in which defendant unlawfully entered hisex-girlfriend's home, found a man sleeping in her bed, and repeatedly struck him aboutthe head with a blunt object. During the plea colloquy, it was noted that defendant "hadsome kind of brain surgery" in the weeks before the assault. The court asked defendant ifhe had discussed with defense counsel whether the recent brain surgery "would raise anyissue," and defendant responded, "I'm told no." Defendant thereafter submitted asentencing memorandum that included a report from a neurologist who stated that, only22 days before the assault, defendant underwent resection of a portion of his brain andwas prescribed multiple medications.
Before sentencing, defendant discharged his counsel and moved through newcounsel to withdraw his guilty plea. In his affidavit in support of the motion, defendantstated that he had wanted to go to trial and assert a psychiatric defense instead ofpleading guilty, but his prior defense attorney had falsely told him that such a defensewas unavailable because his neurosurgeon had refused to testify at trial. Defendant alsosubmitted an affidavit from his neurosurgeon, who stated that he never spoke todefendant's prior attorney and never refused to testify. In a responding affirmation, theprosecutor stated that, upon information and belief, defendant's prior attorney did not telldefendant that his neurosurgeon had refused to testify.
It is well settled that the determination whether to grant a motion to withdraw aguilty plea is within the court's discretion and that a defendant is entitled to anevidentiary hearing only in rare instances (see People v Manor, 27 NY3d 1012, 1013 [2016]; People v Henderson, 137AD3d 1670, 1670-1671 [2016]). The denial of such a motion is not an abuse ofdiscretion "unless there is some evidence of innocence, fraud, or mistake in inducing theplea" (Henderson, 137 AD3d at 1671 [internal quotation marks omitted]). Here,if the allegations in defendant's affidavit are true, then defendant's plea was notvoluntarily and intelligently entered inasmuch as it was based upon a mistaken belief thata psychiatric defense was unavailable (see id.). We therefore conclude thatdefendant's motion was not "patently insufficient on its face" (People v Mitchell, 21 NY3d964, 967 [2013]), and that the court abused its discretion in denying the motionwithout an evidentiary hearing (see Henderson, 137 AD3d at 1671). Thus, wehold the case, reserve decision, and remit the matter to County Court for a hearing ondefendant's motion. Present—Whalen, P.J., Peradotto, NeMoyer, Curran andTroutman, JJ.