| People v Long |
| 2020 NY Slip Op 02590 [183 AD3d 1275] |
| May 1, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Cornell Long, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Mindy F. Vanleuvan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered October 17, 2016. The judgment convicted defendant, upon his plea ofguilty, of rape in the first degree and burglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of one count each of rape in the first degree (Penal Law § 130.35[1]) and burglary in the first degree (§ 140.30 [3]). Defendant contends thatSupreme Court abused its discretion in denying his motion to withdraw his plea of guilty,which was premised on his allegations that he was confused and emotionally distraughtduring the proceedings and that he was coerced by defense counsel and that, therefore,the plea was not knowing, intelligent, and voluntary. That contention survivesdefendant's waiver of the right to appeal (see People v Davis, 129 AD3d 1613, 1614 [4th Dept2015], lv denied 26 NY3d 966 [2015]), and he preserved that contention for ourreview by moving to withdraw the plea (see People v Lopez, 71 NY2d 662, 665[1988]). We nevertheless reject defendant's contention. " 'Permission towithdraw a guilty plea rests solely within the court's discretion . . . , andrefusal to permit withdrawal does not constitute an abuse of that discretion unless there issome evidence of innocence, fraud, or mistake in inducing the plea' "(Davis, 129 AD3d at 1614). Inasmuch as defendant tendered no such evidence onhis motion, we perceive no abuse of discretion (see People v Ernst, 144 AD3d 1605, 1606-1607 [4th Dept2016], lv denied 28 NY3d 1144 [2017]; People v Torres, 117 AD3d 1497, 1497-1498 [4th Dept2014], lv denied 24 NY3d 965 [2014]; People v Strasser, 83 AD3d 1411, 1411 [4th Dept 2011]).Present—Smith, J.P., Troutman, Winslow, Bannister and DeJoseph,JJ.