Opinion
2015-06-19
The PEOPLE of the State of New York, Respondent, v. Curtis KITCHEN, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30[4] ), defendant contends that Supreme Court abused its discretion in denying his motion to withdraw the plea without hearing oral arguments. We reject that contention. We conclude that the court afforded defendant the requisite “reasonable opportunity to present his contentions” when it adjourned the proceedings to afford defense counsel the opportunity to prepare a written motion ( People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544; see People v. Carter–Doucette, 124 A.D.3d 1323, 1324, 998 N.Y.S.2d 269; People v. Rossborough, 105 A.D.3d 1332, 1333, 963 N.Y.S.2d 494, lv. denied 21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858). In the written motion, defendant sought to withdraw his plea on the ground that it was not knowing, voluntary, or intelligent based on his assertions that he did not understand the terms of the plea agreement because of his treatment for depression. Defendant's conclusory and unsubstantiated assertions are not supported by the record and, indeed, they are refuted by his statements made during the plea proceeding ( see People v. Adams, 45 A.D.3d 1346, 1346, 845 N.Y.S.2d 593; People v. McCawley, 23 A.D.3d 1157, 1157, 803 N.Y.S.2d 490, lv. denied 6 N.Y.3d 778, 811 N.Y.S.2d 345, 844 N.E.2d 800; People v. McKinnon, 5 A.D.3d 1076, 1076–1077, 773 N.Y.S.2d 659, lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.