"The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" (People v Jacob, 94 A.D.3d 1142, 1143; see People v Alexander, 97 N.Y.2d 482, 485). In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880).
"The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" ( People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627 ; seePeople v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 ). In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" ( People v. De Jesus, 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ; seePeople v. Nettles, 30 N.Y.2d 841, 841–842, 335 N.Y.S.2d 83, 286 N.E.2d 467 ; People v. Englese, 7 N.Y.2d 83, 87, 195 N.Y.S.2d 641, 163 N.E.2d 869 ; People v. Swain, 192 A.D.3d 827, 143 N.Y.S.3d 104 ; People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490, affd 19 N.Y.3d 883, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ). "In deciding whether to grant a defendant's motion to withdraw a guilty plea, additional factors may be relevant" ( People v. Hollmond, 191 A.D.3d at 137, 135 N.Y.S.3d 449 ). "For instance, the time that has elapsed between the guilty plea and the motion to vacate it has been described as a ‘significant’ factor" ( id., quoting People v. Nixon, 21 N.Y.2d 338, 355, 287 N.Y.S.2d 659, 234 N.E.2d 687 ).
"The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" (People v Jacob, 94 A.D.3d 1142, 1143; see People v Alexander, 97 N.Y.2d 482, 485). In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880).
"The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" (People v Jacob, 94 A.D.3d 1142, 1143; see People v Alexander, 97 N.Y.2d 482, 485). In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880). "In deciding whether to grant a defendant's motion to withdraw a guilty plea, additional factors may be relevant" (People v Hollmond, 191 A.D.3d at 137).
"The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion" (People v Jacob, 94 A.D.3d 1142, 1143; see People v Alexander, 97 N.Y.2d 482, 485). In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880). "In deciding whether to grant a defendant's motion to withdraw a guilty plea, additional factors may be relevant" (People v Hollmond, 191 A.D.3d at 137).
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas DeRosa, J., at plea; William L. DeProspo, J., at sentence), rendered November 5, 2018, convicting him of vehicular assault in the first degree and driving while intoxicated, upon his plea of guilty, and imposing sentence. By decision and order dated March 10, 2021, this Court remitted the matter to the County Court, Orange County, for further proceedings on the defendant's motion to withdraw his plea of guilty, and thereafter for the submission of a report by the County Court on its determination of the motion (seePeople v. Swain, 192 A.D.3d 827, 143 N.Y.S.3d 104 ). The appeal was held in abeyance pending receipt of the report.
In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827, 829; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880). "A defendant is not entitled to withdraw his guilty plea based on a[n]... unsupported claim" (People v Dixon, 29 N.Y.2d 55, 57; see People v Tinsley, 35 N.Y.2d 926, 927; People v Hollmond, 191 A.D.3d 120, 136-137),
The defendant is correct. In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" ( People v. De Jesus, 199 A.D.2d 529, 530, 606 N.Y.S.2d 255 ; seePeople v. Nettles, 30 N.Y.2d 841, 841–842, 335 N.Y.S.2d 83, 286 N.E.2d 467 ; People v. Englese, 7 N.Y.2d 83, 87, 195 N.Y.S.2d 641, 163 N.E.2d 869 ; People v. Swain, 192 A.D.3d 827, 829, 143 N.Y.S.3d 104 ; People v. Haffiz, 77 A.D.3d 767, 768, 909 N.Y.S.2d 490, affd 19 N.Y.3d 883, 951 N.Y.S.2d 690, 976 N.E.2d 216 ; People v. Smith, 54 A.D.3d 879, 880, 863 N.Y.S.2d 818 ). "A defendant is not entitled to withdraw his guilty plea based on a[n] ... unsupported claim" ( People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 ; seePeople v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ; People v. Hollmond, 191 A.D.3d 120, 136–137, 135 N.Y.S.3d 449 ), or "when the minutes of the plea are unequivocal and refute [the defendant's] contention" ( People v. Frederick, 45 N.Y.2d 520, 526, 410 N.Y.S.2d 555, 382 N.E.2d 1332 ; seePeople v. Haffiz, 77 A.D.3d at 768, 909 N.Y.S.2d 490 ; People v. Miranda, 67 A.D.3d 709, 710, 886 N.Y.S.2d 890 ; People v. Scotti, 142 A.D.2d 616, 617, 530 N.Y.S.2d 271 ; People v. Martin, 133 A.D.2d 852, 852, 520 N.Y.S.2d 214 ). "Where, however, the record raises a legitimate question as to the [validity] of the plea, an evidentiary hearing is re
In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827, 829; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880). "A defendant is not entitled to withdraw his guilty plea based on a[n] . . . unsupported claim" (People v Dixon, 29 N.Y.2d 55, 57; see People v Tinsley, 35 N.Y.2d 926, 927; People v Hollmond, 191 A.D.3d 120, 136-137), or "when the minutes of the plea are unequivocal and refute [the defendant's] contention" (People v Frederick, 45 N.Y.2d 520, 526; see People v Haffiz, 77 A.D.3d at 768; People v Miranda, 67 A.D.3d 709, 710; People v Scotti, 142 A.D.2d 616, 617; People v Martin, 133 A.D.2d 852, 852). "Where, however, the record raises a legitimate question as to the [validity] of the plea, an evidentiary hearing is required" (People v Hollmond, 170 A.D.3d 1193, 1194; see People v Brown, 14 N.Y.3d 113, 116).
The defendant is correct. In general, "such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea" (People v De Jesus, 199 A.D.2d 529, 530; see People v Nettles, 30 N.Y.2d 841, 841-842; People v Englese, 7 N.Y.2d 83, 87; People v Swain, 192 A.D.3d 827, 829; People v Haffiz, 77 A.D.3d 767, 768, affd 19 N.Y.3d 883; People v Smith, 54 A.D.3d 879, 880). "A defendant is not entitled to withdraw his guilty plea based on a[n] . . . unsupported claim" (People v Dixon, 29 N.Y.2d 55, 57; see People v Tinsley, 35 N.Y.2d 926, 927; People v Hollmond, 191 A.D.3d 120, 136-137), or "when the minutes of the plea are unequivocal and refute [the defendant's] contention" (People v Frederick, 45 N.Y.2d 520, 526; see People v Haffiz, 77 A.D.3d at 768; People v Miranda, 67 A.D.3d 709, 710; People v Scotti, 142 A.D.2d 616, 617; People v Martin, 133 A.D.2d 852, 852). "Where, however, the record raises a legitimate question as to the [validity] of the plea, an evidentiary hearing is required" (People v Hollmond, 170 A.D.3d 1193, 1194; see People v Brown, 14 N.Y.3d 113, 116). "In deciding whether to grant a defendant's motion to withdraw