Opinion
543 KA 18–00243
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Cornell LONG, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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, 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 that Supreme 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 distraught during the proceedings and that he was coerced by defense counsel and that, therefore, the plea was not knowing, intelligent, and voluntary. That contention survives defendant's waiver of the right to appeal (see People v. Davis, 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778 [4th Dept. 2015], lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ), 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 [1988] ). 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’ " ( Davis, 129 A.D.3d at 1614, 11 N.Y.S.3d 778 ). Inasmuch as defendant tendered no such evidence on his motion, we perceive no abuse of discretion (see People v. Ernst, 144 A.D.3d 1605, 1606–1607, 40 N.Y.S.3d 691 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ; People v. Torres, 117 A.D.3d 1497, 1497–1498, 984 N.Y.S.2d 530 [4th Dept. 2014], lv . denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014] ; People v. Strasser, 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454 [4th Dept. 2011] ).