SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
111
KA 10-00653
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CALVIN WALKER, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered December 17, 2009. The judgment convicted
defendant, upon his plea of guilty, of burglary in the first degree
and robbery in the first degree.
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 first degree (Penal Law § 140.30
[4]) and robbery in the first degree (§ 160.15 [4]), defendant
contends that County Court erred in failing to ask him at sentencing
why he wished to withdraw his guilty plea. We reject that contention.
Where, as here, “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 NY3d 113, 116 [internal quotation marks omitted]; see People v
Mitchell, 21 NY3d 964, 966). “Only in the rare instance will a
defendant be entitled to an evidentiary hearing; often a limited
interrogation by the court will suffice” (People v Tinsley, 35 NY2d
926, 927). “The defendant should be afforded reasonable opportunity
to present his contentions” (id.; see People v Rossborough, 105 AD3d
1332, 1333, lv denied 21 NY3d 1045; People v Zimmerman, 100 AD3d 1360,
1362, lv denied 20 NY3d 1015).
Here, during the plea colloquy, defendant admitted his
involvement in the crimes in question, which involved a home invasion
robbery and a separate armed robbery committed the following day, and
waived his right to appeal. In return, the court promised to sentence
defendant to concurrent determinate terms of imprisonment of 18 years,
plus a period of postrelease supervision. At sentencing, however,
defense counsel stated that defendant wished to withdraw his plea, and
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KA 10-00653
that she had instructed him that a plea withdrawal was something that
he needed to raise with the court. The court turned to defendant, who
said “Yes. I withdraw my plea.” The court asked defendant whether
there was anything else he wished to say, whereupon defendant answered
“No.” The court then denied defendant’s “request” to withdraw his
plea and asked him if he wished to say anything before the negotiated
sentence was imposed. Defendant availed himself of that opportunity,
stating that he had not received any “information” about his case, and
that he preferred to go to trial “rather than settle for 18, [be]cause
that’s a long time for something I didn’t do.” The record therefore
establishes that defendant was afforded a reasonable opportunity to
present his contentions. We note that if, as defendant contends,
there is a legitimate basis for withdrawal of his plea, he may seek
relief in a motion pursuant to CPL 440.10.
Finally, we reject defendant’s contention that his sentence is
unduly harsh and severe.
Entered: February 14, 2014 Frances E. Cafarell
Clerk of the Court