| People v Jabot |
| 2017 NY Slip Op 08554 [156 AD3d 954] |
| December 7, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AaronJabot, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Jason M. Carusone, Acting District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Rumsey, J. Appeals (1) from a judgment of the County Court of Warren County (Hall Jr., J.),rendered November 9, 2015, convicting defendant upon his plea of guilty of the crime of assaultin the second degree, and (2) from a judgment of said court, rendered January 18, 2017, whichresentenced defendant for the crime of attempted assault in the second degree.
During trial in September 2015, defendant pleaded guilty to the crime of assault in thesecond degree in satisfaction of two indictments and waived his right to appeal. At sentencing inNovember 2015, County Court denied defendant's oral application to withdraw his plea andsentenced defendant, consistent with the plea agreement, to a prison term of four years to befollowed by five years of postrelease supervision. The court later ascertained, however, thatdefendant's sentence was illegal because the term of imprisonment imposed was less than thatrequired by law for a second violent felony offender. In January 2017, with the explicit consentof the People and defendant, defendant's conviction was reduced to attempted assault in thesecond degree and he was resentenced, nunc pro tunc, to 2 to 4 years in prison to be followed byfive years of postrelease supervision. Defendant now appeals from both judgments.
We reject defendant's argument that County Court erred in summarily denying his motion towithdraw his guilty plea. "Whether to permit a defendant to withdraw his or her plea of guilty isleft to the sound discretion of County Court, and withdrawal will generally not be [*2]permitted absent some evidence of innocence, fraud or mistake inits inducement. An evidentiary hearing will be required only where the record presents a genuinequestion of fact as to the plea's voluntariness" (People v Decker, 139 AD3d 1113, 1116 [2016] [internal quotationmarks and citations omitted], lv denied 28 NY3d 928 [2016]). Upon making his motionto withdraw his plea, defendant asserted that he was innocent, had received ineffective assistanceof counsel due to a conflict of interest and that his ability to understand the plea agreement wasimpaired by medication. County Court found that defendant had received effective assistancefrom counsel, who had conducted a vigorous defense over five days of trial and obtained a pleaoffer that was advantageous to defendant because it allowed him to avoid a potential sentenceupon conviction at trial of 25 years to life. The court further noted that the plea allocutionestablished that defendant committed the crime and specifically found that the extent of theinjury to the victim's ear was documented by evidence adduced at trial, including a photograph.Moreover, the court's determination that defendant was able to understand the proceedings issupported by the record. At the plea allocution, defendant denied having consumed alcohol orillicit drugs within the preceding 24 hours or to having taken any prescription medications thataffected his mental capacity and stated that he understood the proceedings. He also had capablyparticipated with his counsel throughout the five-day trial. Thus, County Court did not abuse itsdiscretion in denying the motion without a hearing (see People v Pixley, 150 AD3d 1555, 1556 [2017], lvdenied 30 NY3d 952 [2017]; Peoplev Charleston, 142 AD3d 1248, 1249-1250 [2016]; People v Decker, 139 AD3dat 1116-1117).
We further conclude that defendant was properly resentenced. Where, as here, the sentenceimposed is illegal, the sentencing court has the discretion, without affording the defendant theopportunity to withdraw the plea, to reduce the sentence or the crime charged so that the sentenceupon which the plea bargain was based can legally be imposed (see People v Collier, 22 NY3d429, 433-434 [2013], cert denied 573 US &mdash, 134 S Ct 2730 [2014]; Peoplev Sheils, 288 AD2d 504, 505-506 [2001], lv denied 97 NY2d 733 [2002]). In thiscase, County Court, with the consent of the People and defendant, properly reduced the chargefrom assault in the second degree to attempted assault in the second degree and imposed asentence of 2 to 4 years, which was more favorable to defendant than the term of four years thatwas originally imposed pursuant to the plea agreement.
McCarthy, J.P., Egan Jr., Lynch and Rose, JJ., concur. Ordered that the judgments areaffirmed.