| People v Wrest |
| 2018 NY Slip Op 02214 [159 AD3d 1274] |
| March 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MatthewWrest, Appellant. |
Marshall Nadan, Kingston, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered August 7, 2015, convicting defendant upon his plea of guilty of the crime of sexualabuse in the first degree.
Defendant pleaded guilty to sexual abuse in the first degree as charged in a superior courtinformation and waived his right to appeal. Prior to sentencing, defendant moved, pro se, towithdraw his plea, asserting that he did not receive the effective assistance of counsel and wascoerced into pleading guilty. County Court denied the motion without a hearing and sentenceddefendant, in accordance with the terms of the plea agreement, to a prison term of two yearsfollowed by 10 years of postrelease supervision. Defendant appeals.
Initially, we note that defendant's claim of ineffective assistance of counsel is not precludedby the waiver of the right to appeal to the extent that it implicates the voluntariness of the pleaand, further, is preserved for our review given his motion to withdraw his plea (see People v Carbone, 101 AD3d1232, 1233 [2012]). "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 permittedabsent some evidence of innocence, fraud or mistake in its inducement" (People v Farnsworth, 140 AD3d1538, 1539 [2016] [internal quotation marks and citations omitted]). "The nature and extentof the fact-finding procedures necessary to decide a motion to withdraw a guilty plea rest withinthe discretion of the trial court, and only in the rare instance will a defendant be entitled to anevidentiary hearing" (People v Riddick, 136 AD3d [*2]1124, 1124 [2016] [internal quotation marks, brackets and citationsomitted], lv denied 27 NY3d 1154 [2016]; see People v Pittman, 104 AD3d 1027, 1027 [2013], lvdenied 21 NY3d 1008 [2013]).
Here, defendant was provided with a "reasonable opportunity to present his contentions"(People v Tinsley, 35 NY2d 926, 927 [1974]; see People v Hayes, 71 AD3d 1187, 1188 [2010], lv denied15 NY3d 852 [2010]) with the assistance of new counsel. In denying the motion, County Courtexplained that the record did not support defendant's assertion of ineffective assistance of counselnor did it call into question the voluntariness of defendant's plea (see People v Hayes, 71AD3d at 1188). During the plea colloquy, defendant specifically acknowledged that heunderstood the plea proceeding, had sufficient time to consult with counsel prior to accepting theplea, was satisfied with the legal representation provided, was not coerced into pleading guiltyand was doing so because he was, in fact, guilty of the conduct charged. Under thesecircumstances, we find no abuse of discretion in County Court denying defendant's motionwithout conducting an evidentiary hearing (see People v Pittman, 104 AD3d at1027-1028; People v Hayes, 71 AD3d at 1188; People v Branton, 35 AD3d 1035, 1036 [2006], lv denied 8NY3d 982 [2007]).
Garry, P.J., McCarthy, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.