| People v Conklin |
| 2018 NY Slip Op 02502 [160 AD3d 1114] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Sean W. Conklin, Appellant. |
Arthur G. Dunn, Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Kathryn M. Moryl of counsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Rensselaer County (Young, J.),rendered September 24, 2013, convicting defendant upon his plea of guilty of the crimes ofburglary in the second degree and unlawful imprisonment in the second degree.
In August 2012, defendant was arrested and charged with kidnapping in the second degree,burglary in the second degree and criminal contempt in the first degree as a result of a domesticdispute with his former girlfriend (hereinafter the victim). Plea negotiations ensued and, afterinitially rejecting the People's modified offer, defendant waived indictment and agreed to beprosecuted pursuant to a superior court information charging him with burglary in the seconddegree and unlawful imprisonment in the second degree. Although defendant pleaded guilty tothe charged crimes before County Court (Jacon, J.) in November 2012, he subsequently moved towithdraw his plea on the basis that it had been procured by fraud and/or mistake because theAssistant District Attorney (hereinafter ADA) prosecuting the matter had misrepresented that thevictim was willing to cooperate in the prosecution. Defendant also retained new counsel.Following a hearing in May 2013, County Court (Young, J.) denied defendant's motion towithdraw his plea, finding that the People did not engage in any fraud or misrepresentation in theprocurement thereof. Defendant thereafter was sentenced upon his burglaryconviction—as a violent felony offender—to a prison term of 3
[*2] We affirm. "Whether to permit a defendant to withdraw his or her plea of guilty is left tothe sound discretion of County Court, and withdrawal will generally not be permitted absentsome evidence of innocence, fraud or mistake in its inducement" (People v Jabot, 156 AD3d 954,955 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 1116[2018]; accord People v Brown, 154AD3d 1004, 1006 [2017], lv denied 30 NY3d 1113 [2018]; People v Beaver, 150 AD3d 1325,1325 [2017]). Here, defense counsel testified at the hearing that the ADA prosecuting this matterhad assured him—on multiple occasions—that the victim was cooperating withauthorities and was "on board" with the prosecution, prompting defense counsel to convey thatinformation to defendant and, in turn, to encourage him to accept the People's plea offer.Defendant similarly testified that his attorney had informed him that the victim was cooperatingand that such belief was the basis for his decision to ultimately accept the People's offer andplead guilty. Although the victim insisted that she informed the ADA that she would not testifyagainst defendant, thus giving rise to defendant's claim that his plea was procured by fraud ormisrepresentation, the ADA disputed the victim's recollection of events and unequivocallytestified that the victim "never indicated . . . that she was not going to cooperate,"that "[s]he never told [him] she was unwilling to testify" and that, despite her continued romanticfeelings for defendant, the victim understood that there had to be "consequences" for defendant'sactions and that she was "satisfied" with the plea deal. The ADA's testimony on this point waslargely corroborated by a victim's advocate, who was present for a November 13, 2012 meetingwith the ADA, the victim and the victim's mother to discuss the proposed plea bargain. In thisregard, the victim's advocate testified that, although the victim did not want defendant to pleadguilty to kidnapping, the victim never indicated either that she would not testify againstdefendant, that she was not "on board" with the prosecution or that she wanted to withdraw thecharges against defendant.
County Court, having observed the witnesses first hand and having had ample opportunity toassess the credibility and demeanor thereof (see e.g. People v Cartagena, 149 AD3d 1518, 1519 [2017], lvdenied 29 NY3d 1124 [2017]), elected to credit the testimony offered by the People'switnesses. Upon reviewing the record before us, we do not find that County Court abused itsconsiderable discretion in this regard. Accordingly, defendant's motion to withdraw his plea wasproperly denied, and the judgment of conviction is affirmed.
Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.