| People v Barrett |
| 2017 NY Slip Op 06764 [153 AD3d 1600] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of The State of New York,Respondent, v Zachary J. Barrett, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Keith A. Slep, District Attorney, Belmont (J. Thomas Fuoco of counsel), for respondent.
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.), renderedMarch 2, 2016. The judgment convicted defendant, upon his plea of guilty, of grand larceny inthe fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofgrand larceny in the fourth degree (Penal Law § 155.30 [4]). Defendant failed topreserve for our review his challenge to the factual sufficiency of the plea allocution inasmuch ashis motion to withdraw his plea was made on grounds different from those advanced on appeal(see People v Gibson, 140 AD3d1786, 1787 [2016], lv denied 28 NY3d 1072 [2016]; People v Green, 132 AD3d 1268,1268-1269 [2015], lv denied 27 NY3d 1069 [2016], denied reconsideration 28NY3d 930 [2016]). We conclude that this case does not fall within the rare exception to thepreservation requirement because defendant did not negate an element of the pleaded-to offenseduring the colloquy or otherwise cast significant doubt on his guilt or call into question thevoluntariness of the plea (see People v Lopez, 71 NY2d 662, 666 [1988]). In any event,defendant's contention is without merit (see People v Madden, 148 AD3d 1576, 1578 [2017], lvdenied 29 NY3d 1034 [2017]). Contrary to defendant's further contention, his " 'yes'and 'no' answers during the plea colloqu[y] do not invalidate his guilty plea[ ]" (People v Russell, 133 AD3d 1199,1199 [2015], lv denied 26 NY3d 1149 [2016]).
Defendant also contends that the plea was not knowingly, intelligently and voluntarilyentered because County Court misinformed him of the minimum sentence to which he wasexposed. Defendant's contention is not preserved for our review inasmuch as he did not move towithdraw the plea or to vacate the judgment of conviction on that ground (see People v Morrison, 78 AD3d1615, 1616 [2010], lv denied 16 NY3d 834 [2011]; see also People v Rossborough, 105AD3d 1332, 1333 [2013], lv denied 21 NY3d 1045 [2013]), nor did the courtexpressly decide the question raised on appeal (see CPL 470.05 [2]; People v Jackson, 29 NY3d 18, 23[2017]).
Contrary to defendant's contention, the court did not abuse its discretion in denying hismotion to withdraw his plea. Defendant made his motion on the ground that he had entered theguilty plea without considering or understanding the consequences thereof because he wasemotionally distraught by the prospect of continued incarceration and would be released fromcustody pending sentencing, and because he had insufficient time to discuss the plea with defensecounsel. " 'The determination whether to permit a defendant to withdraw a guilty plearests within the sound discretion of the court' . . . , and 'a court does not abuse itsdiscretion in denying a motion to withdraw a guilty plea where[, as here,] the defendant'sallegations in support of the motion are belied by the defendant's statements during the pleaproceeding' " (People vLewicki, 118 AD3d 1328, 1329 [2014], lv denied 23 NY3d 1064 [2014]).
Finally, defendant contends that the court erred in failing to conduct an evidentiary hearingbefore denying his further motion to withdraw his plea, which was made at sentencing on theground that the prosecutor had a conflict of interest. We reject that contention. Here, defendantwas "afforded [a] reasonable opportunity to present his contentions," and the court made "aninformed determination" in denying the motion on the merits (People v Tinsley, 35 NY2d926, 927 [1974]). The record establishes that the prosecutor briefly represented defendant in anunrelated criminal matter several years before the instant action, and there is no indication of"actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuseof confidence" (People v Martin, 2AD3d 1336, 1337 [2003], lv denied 1 NY3d 630 [2004] [internal quotation marksomitted]; see People v Tyler, 209 AD2d 1028, 1029 [1994], lv denied 85 NY2d915 [1995]). Present—Whalen, P.J., Peradotto, Lindley, NeMoyer and Curran,JJ.