| People v Williams |
| 2019 NY Slip Op 02244 [170 AD3d 1666] |
| March 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Timothy L. Williams, Appellant. |
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of counsel),for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brittany Grome Antonacci of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedDecember 20, 2016. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of marihuana in the second 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 ofcriminal possession of marihuana in the second degree (Penal Law § 221.25).Initially, we note that it is unnecessary to review defendant's challenge to his waiver of the rightto appeal because, as the People correctly concede, "none of the issues he raises would beforeclosed from review by a valid waiver of the right to appeal" (People v Irby, 158 AD3d 1050,1051 [4th Dept 2018], lv denied 31 NY3d 1014 [2018]; see People v Lefler, 159 AD3d1427, 1427 [4th Dept 2018], lv denied 31 NY3d 1118 [2018]; People v Dale, 142 AD3d 1287,1288 [4th Dept 2016], lv denied 28 NY3d 1144 [2017]).
Defendant contends that his guilty plea was not knowingly, intelligently, and voluntarilyentered and that County Court abused its discretion in denying his motion to withdraw his pleaon that ground without first conducting a hearing. We reject defendant's contention that the courterred in failing to conduct an evidentiary hearing before denying his motion (see generally People v Manor, 27NY3d 1012, 1013-1014 [2016]; People v Stutzman, 158 AD3d 1294, 1295 [4th Dept 2018], lvdenied 31 NY3d 1122 [2018]). Contrary to defendant's further contention, the court properlydenied his motion. "[P]ermission to withdraw a guilty plea rests solely within the court'sdiscretion . . . , and refusal to permit withdrawal does not constitute an abuse of thatdiscretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea" (People v Schultz, 158 AD3d 1058,1058 [4th Dept 2018], lv denied 31 NY3d 1017 [2018] [internal quotation marksomitted]). Here, there is no support in the record for defendant's contention that the Peoplecommitted a Brady violation that induced him to plead guilty (see generally Brady vMaryland, 373 US 83, 87 [1963]). Similarly, defendant's "conclusory and unsubstantiatedassertion that his plea was coerced" by threats of additional prosecution was "refuted by hisstatements during the plea proceedings" (People v McKinnon, 5 AD3d 1076, 1076-1077 [4th Dept 2004],lv denied 2 NY3d 803 [2004] [internal quotation marks omitted]; see People v Spates, 142 AD3d1389, 1389 [4th Dept 2016], lv denied 28 NY3d 1127 [2016]). Notably, defendant'sown submissions on his motion establish that he was aware for over six months before pleadingguilty that the People were not pursuing additional charges against him. In any event, "[t]he factthat the possibility of [additional charges] may have influenced defendant's decision to pleadguilty is insufficient to establish that the plea was coerced" (People v Wolf, 88 AD3d 1266, 1267 [4th Dept 2011], lv denied18 NY3d 863 [2011] [internal quotation marks omitted]). Although we agree with defendantthat the prosecutor incorrectly stated that defendant could be sentenced as a persistent felonyoffender (see People v Boykins, 161AD3d 183, 187 [4th Dept 2018], lv denied 31 NY3d 1145 [2018]), that fact" 'is not, in and of itself, dispositive' of the issue whether defendant's plea was knowinglyand voluntarily entered" (People vJohnson, 24 AD3d 1259, 1259 [4th Dept 2005], lv denied 6 NY3d 814 [2006],quoting People v Garcia, 92 NY2d 869, 870 [1998]). Rather, in evaluating that issue,"various factors must be considered, 'including the nature and terms of the agreement, thereasonableness of the bargain, and the age and experience of the accused' " (id. at1259, quoting People v Hidalgo, 91 NY2d 733, 736 [1998]). Here, defendant was 42years old at the time he pleaded guilty and had a number of previous experiences with thecriminal justice system. Defendant also received a sentencing commitment from the court of nomore than shock probation. Based on the record before us, including defendant's statementsduring the plea colloquy that he was not threatened or forced to plead guilty, we conclude that thecourt did not abuse its discretion in denying defendant's motion to withdraw his guilty plea.Present—Whalen, P.J., Peradotto, Carni, NeMoyer and Winslow, JJ.