Opinion
200 KA 17-01373
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Montiez L. WEEMS, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, 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 him upon his plea of guilty of burglary in the third degree ( Penal Law § 140.20 ), we reject defendant's contention that County Court erred in denying without an evidentiary hearing his pro se motion to withdraw his guilty plea. "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" ( People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ; see People v. Strasser , 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454 [4th Dept. 2011] ). 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. 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] ). Contrary to defendant's related contention, the court did not abuse its discretion in failing to substitute new counsel (see People v. Weinstock , 129 A.D.3d 1663, 1664, 11 N.Y.S.3d 782 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ).