Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Nathan J. ROSEKRANS, Defendant–Appellant.
Andrew Mancilla, New York City, for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
Andrew Mancilla, New York City, for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
PRESENT: WHALEN, P.J., LINDLEY, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05[4] ). The charges arose from allegations that defendant injected a mixture of drugs into his girlfriend, who thereby overdosed. Defendant contends that County Court abused its discretion in denying his motion to withdraw his plea of guilty, which was premised largely on his subsequent claim of innocence during his presentence interview. We reject that 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. Davis, 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778, lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 ). Here, defendant failed to substantiate his own claim of innocence with a sworn affidavit (see 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 ). Instead, defendant based his motion on his statement of innocence during his presentence interview, as supported by his alleged "prior consistent statement" regarding his innocence in a police report. We conclude that neither statement constitutes the requisite "evidence" that would permit us to determine that the court abused its discretion in denying defendant's motion (Davis, 129 A.D.3d at 1614, 11 N.Y.S.3d 778 ). It is well settled that a court may deny a motion to withdraw a plea based on "unsubstantiated assertions of innocence during the course of the presentence investigation" (People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 ; see also People v. Gomez, 114 A.D.3d 701, 702, 979 N.Y.S.2d 828, lv. denied 23 N.Y.3d 963, 988 N.Y.S.2d 570, 11 N.E.3d 720 ; People v. Campeau, 300 A.D.2d 1082, 1082, 751 N.Y.S.2d 902, lv. denied 99 N.Y.2d 613, 757 N.Y.S.2d 823, 787 N.E.2d 1169 ). Moreover, the police report does not support a claim of innocence. Defendant initially gave the police two conflicting accounts that his girlfriend had injected herself with drugs but, after he received his Miranda warnings, he confessed to compounding the mixture of drugs himself and injecting his girlfriend with them. We cannot conclude that defendant's initial, contradictory, and self-serving attempts to evade responsibility for his criminal actions fall within the category of a prior consistent statement (see generally People v. Buie, 86 N.Y.2d 501, 509–511, 634 N.Y.S.2d 415, 658 N.E.2d 192 ; People v. Green, 122 A.D.3d 1342, 1344, 995 N.Y.S.2d 897 ), especially given that " ‘nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea’ " (People v. Brinson, 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788, lv. denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 ). We therefore further conclude that defendant's motion was based solely on an unsupported claim of innocence, and thus that the court did not abuse its discretion in denying it (see People v. Haffiz, 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; see generally People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 ). Finally, given the nature of the materials submitted in support of the motion, the court did not abuse its discretion in denying the motion without conducting a fact-finding hearing (see People v. Manor, 27 N.Y.3d 1012, 1014, 35 N.Y.S.3d 272, 54 N.E.3d 1143 ; Davis, 129 A.D.3d at 1614, 11 N.Y.S.3d 778 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.