Opinion
2015-06-19
The PEOPLE of the State of New York, Respondent, v. Peter DAVIS, Defendant–Appellant.
Cara A. Waldman, Fairport, for Defendant–Appellant. Valerie G. Gardner, District Attorney, Penn Yan (Megan P. Dadd of Counsel), for Respondent.
Cara A. Waldman, Fairport, for Defendant–Appellant. Valerie G. Gardner, District Attorney, Penn Yan (Megan P. Dadd of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of driving while ability impaired by drugs (Vehicle and Traffic Law § 1192[4] ). Contrary to defendant's contention, the record establishes that he validly waived his right to appeal both orally and in writing before pleading guilty. The record establishes that County Court conducted “ ‘an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” ( People v. Glasper, 46 A.D.3d 1401, 1401, 847 N.Y.S.2d 875, lv. denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252; see People v. Estevez–Santos, 114 A.D.3d 1174, 1175, 979 N.Y.S.2d 907, lv. denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802), and that “ defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Defendant contends that the court abused its discretion in denying his motion to withdraw his plea of guilty, which was premised on his allegations that he was under the influence of medication that impacted his ability to understand the plea proceedings and that, therefore, the plea was not knowing, intelligent and voluntary. That contention survives defendant's valid waiver of the right to appeal ( see People v. Lawrence, 118 A.D.3d 1501, 1501, 988 N.Y.S.2d 384, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44; People v. Torres, 117 A.D.3d 1497, 1498, 984 N.Y.S.2d 530, lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004), and he preserved that contention for our review by moving to withdraw the plea ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). We nevertheless reject defendant's contention. “ Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea” ( People v. Robertson, 255 A.D.2d 968, 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188; see People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427, lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334). Inasmuch as defendant tendered no such evidence on his motion, we perceive no abuse of discretion.
We reject defendant's further contention that the court should have conducted a hearing on his motion. Where, as here, “a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made” ( People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [internal quotation marks omitted]; see People v. Mitchell, 21 N.Y.3d 964, 966, 970 N.Y.S.2d 919, 993 N.E.2d 405). “Only in the rare instance will a defendant be entitled to an evidentiary hearing” ( People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544). Here, we conclude that defendant was afforded a reasonable opportunity to present his contention that, because of the influence of his medication, his plea was not knowing, intelligent, and voluntary ( see People v. Walker, 114 A.D.3d 1257, 1258, 980 N.Y.S.2d 216, lv. denied 23 N.Y.3d 1044, 993 N.Y.S.2d 257). We note, however, that defendant failed to substantiate his contention inasmuch as he submitted only his self-serving statements and his attorney's assertions made upon information and belief ( see People v. Ashley, 71 A.D.3d 1286, 1287, 896 N.Y.S.2d 520, affd. 16 N.Y.3d 725, 917 N.Y.S.2d 91, 942 N.E.2d 300; People v. Watkins, 107 A.D.3d 1416, 1417, 966 N.Y.S.2d 637, lv. denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555). Furthermore, “[d]efendant's contention is belied by the record of the plea proceeding, which establishes that his factual allocution was lucid and detailed and that defendant understood both the nature of the proceedings and that he was waiving various rights” ( People v. Hayes, 39 A.D.3d 1173, 1175, 834 N.Y.S.2d 784, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897). In light of those circumstances, we cannot conclude that this case is one of those “rare instance[s]” in which defendant was entitled to a hearing on his motion ( Tinsley, 35 N.Y.2d at 927, 365 N.Y.S.2d 161, 324 N.E.2d 544).
Finally, defendant's valid waiver of the right to appeal encompasses his further contention that the sentence is unduly harsh and severe ( see People v. Rodman, 104 A.D.3d 1186, 1188, 960 N.Y.S.2d 784, lv. denied 22 N.Y.3d 1202, 986 N.Y.S.2d 422; see generally Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.