| People v Smith |
| 2017 NY Slip Op 01893 [148 AD3d 939] |
| March 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aaron N. Smith, Appellant. |
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Glenn Green of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County (Condon,J.), rendered July 24, 2015, convicting him of criminal possession of a controlled substance inthe first degree, upon his plea of guilty, and imposing sentence, and (2) an amended judgment ofthe same court, also rendered July 24, 2015, revoking a sentence of probation previously imposedby that court, upon a finding that he violated conditions thereof, upon his admission, andimposing a sentence of imprisonment upon his previous conviction of attempted criminal sale ofa controlled substance in the third degree.
Ordered that the judgment and the amended judgment are affirmed.
The County Court providently exercised its discretion in denying, without a hearing, thedefendant's motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty restswithin the sound discretion of the court, and generally the court's determination will not bedisturbed absent an improvident exercise of discretion (see CPL 220.60 [3]; People vAlexander, 97 NY2d 482, 485 [2002]; People v Street, 144 AD3d 711, 711-712 [2016]; People v Rodriguez, 142 AD3d1189, 1190 [2016]). "Generally, a plea of guilty may not be withdrawn absent someevidence of innocence, fraud, or mistake in its inducement" (People v Smith, 54 AD3d 879, 880 [2008]; see People vRodriguez, 142 AD3d at 1190; People v Zakrzewski, 7 AD3d 881, 881 [2004]). When a defendantmoves to withdraw a plea of guilty, the nature and extent of the fact-finding inquiry rests largelyin the discretion of the court, and a hearing will be granted only in rare instances (see Peoplev Tinsley, 35 NY2d 926 [1974]; People v Street, 144 AD3d at 712). Here, the recordreflects that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently(see People v Fiumefreddo, 82 NY2d 536, 546 [1993]; People v John, 107 AD3d 824, 825[2013]). The defendant's postplea assertions that he was innocent contradicted the admissionsmade under oath at his plea allocution, and were insufficient to warrant vacatur of his plea, ahearing, or further inquiry by the court (see People v Tinsley, 35 NY2d 926 [1974];People v Street, 144 AD3d at 712; People v Rodriguez, 142 AD3d at 1190; People v Upson, 134 AD3d 1058,1058 [2015]).
Further, contrary to the defendant's contention, the sentence imposed on his previousconviction of attempted criminal sale of a controlled substance in the third degree, a one-yearterm [*2]of incarceration and a one-year period of postreleasesupervision, was not illegal or improper (see Penal Law §§ 60.01,60.04, 70.45, 70.70). Dillon, J.P., Austin, Hinds-Radix and Maltese, JJ., concur.