| People v Smith |
| 2017 NY Slip Op 01893 |
| Decided on March 15, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 15, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2015-07241
2015-07443
v
Aaron N. Smith, appellant. (Ind. Nos. 654/11, 724/14)
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Glenn Green of counsel), for respondent.
DECISION & ORDER
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County (Condon, J.), rendered July 24, 2015, convicting him of criminal possession of a controlled substance in the first degree, upon his plea of guilty, and imposing sentence, and (2) an amended judgment of the same court, also rendered July 24, 2015, revoking a sentence of probation previously imposed by that court, upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree.
ORDERED that the judgment and the amended judgment are affirmed.
The County Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty rests within the sound discretion of the court, and generally the court's determination will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3]; People v Alexander, 97 NY2d 482, 485; People v Street, 144 AD3d 711, 711-712; People v Rodriguez, 142 AD3d 1189, 1190). "Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement" (People v Smith, 54 AD3d 879, 880; see People v Rodriguez, 142 AD3d at 1190; People v Zakrzewski, 7 AD3d 881, 881). When a defendant moves to withdraw a plea of guilty, the nature and extent of the fact-finding inquiry rests largely in the discretion of the court, and a hearing will be granted only in rare instances (see People v Tinsley, 35 NY2d 926; People v Street, 144 AD3d at 712). Here, the record reflects that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 546; People v John, 107 AD3d 824, 825). The defendant's postplea assertions that he was innocent contradicted the admissions made under oath at his plea allocution, and were insufficient to warrant vacatur of his plea, a hearing, or further inquiry by the court (see People v Tinsley, 35 NY2d 926; People v Street, 144 AD3d at 712; People v Rodriguez, 142 AD3d at 1190; People v Upson, 134 AD3d 1058, 1058).
Further, contrary to the defendant's contention, the sentence imposed on his previous conviction of attempted criminal sale of a controlled substance in the third degree, a one-year term [*2]of incarceration and a one-year period of postrelease supervision, was not illegal or improper (see Penal Law §§ 60.01, 60.04, 70.45, 70.70).
DILLON, J.P., AUSTIN, HINDS-RADIX and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court