Opinion
871 KA 21-00373
11-18-2022
The PEOPLE of the State of New York, Respondent, v. Kelly M. RADOS, Defendant-Appellant.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of criminal possession of a forged instrument in the third degree ( Penal Law § 170.20 ), defendant contends that County Court erred in denying without an evidentiary hearing her pro se motion to withdraw her guilty plea. We reject that contention.
"When 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 [2010], quoting People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ; see People v. Manor , 27 N.Y.3d 1012, 1013-1014, 35 N.Y.S.3d 272, 54 N.E.3d 1143 [2016] ). "Only in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice. The defendant should be afforded [a] reasonable opportunity to present his [or her] contentions and the court should be enabled to make an informed determination" ( Tinsley , 35 N.Y.2d at 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ).
Here, the record establishes that defendant was afforded such an opportunity and that the court was able to make an informed determination of the motion (see People v. Weems , 203 A.D.3d 1684, 1684, 162 N.Y.S.3d 839 [4th Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 229, 189 N.E.3d 336 [2022] ; People v. Soriano , 178 A.D.3d 1376, 1377, 116 N.Y.S.3d 803 [4th Dept. 2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 243, 142 N.E.3d 1145 [2020] ; People v. Sparcino , 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ). Further, the court did not abuse its discretion in denying the motion. Although defendant claimed innocence and coercion at sentencing, she "admitted each element of the offense during [her] plea allocution and did not claim either that [she] was innocent or that [she] had been coerced by defense counsel at that time" ( Sparcino , 78 A.D.3d at 1509, 911 N.Y.S.2d 523 ; see People v. Steele , 167 A.D.3d 1514, 1515, 90 N.Y.S.3d 434 [4th Dept. 2018], lv denied 33 N.Y.3d 954, 100 N.Y.S.3d 181, 123 N.E.3d 840 [2019] ; People v. Newsome , 140 A.D.3d 1695, 1695, 34 N.Y.S.3d 295 [4th Dept. 2016] ). To the extent that defendant suggested that she was pressured into accepting the plea by defense counsel, that suggestion was "belied by [her] statements during the plea proceeding[ ]" and, in addition, defendant's "conclusory and unsubstantiated claim[s] of innocence [were] belied by [her] admissions during the plea colloquy" ( People v. Garner , 86 A.D.3d 955, 955, 926 N.Y.S.2d 796 [4th Dept. 2011] ; see People v. Haffiz , 19 N.Y.3d 883, 884-885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ; Sparcino , 78 A.D.3d at 1509, 911 N.Y.S.2d 523 ).
We have considered defendant's remaining contention and conclude that it does not warrant any relief.