People v. Cantu

• Decision Date: 11 March 1994
• Parties: PEOPLE of the State of New York, Respondent, v. Javier H. CANTU, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 113

610 N.Y.S.2d 113

202 A.D.2d 1033

PEOPLE of the State of New York, Respondent, v. Javier H. CANTU, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

March 11, 1994.

Richard V. Slater by Donald Nihoul, Mayville, for appellant.

John P. Subjack by James Subjack, Mayville, for respondent.

Before GREEN, J.P., and PINE, FALLON, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

We reject the contention of defendant that County Court erred in accepting his guilty plea without a factual allocution. Because "defendant pleaded guilty to a lesser crime than the one charged in the indictment, a factual basis for the plea was unnecessary" (People v. Moore, 71 N.Y.2d 1002, 1006, 530 N.Y.S.2d 94, 525 N.E.2d 740; People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366; People v. Nunez, 177 A.D.2d 656, 576 N.Y.S.2d 358). Moreover, there is no basis to conclude that defendant's plea was "improvident or baseless" (People v. Duff, 158 A.D.2d 711, 552 N.Y.S.2d 160, lv. denied 76 N.Y.2d 734, 558 N.Y.S.2d 895, 557 N.E.2d 1191). Defendant, no stranger to the criminal justice system, pleaded guilty only after he had consulted with counsel and had been fully advised by the court of the consequences of his plea (see, People v. Nixon, 21 N.Y.2d 338, 350, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709; People v. O'Keefe, 170 A.D.2d 1020, 566 N.Y.S.2d 166, lv. denied, 77 N.Y.2d 965, 570 N.Y.S.2d 498, 573 N.E.2d 586).

We also reject the contention of defendant that the court erred in denying his motion to withdraw the guilty plea. Whether to permit a defendant to withdraw a previously entered guilty plea is a decision that rests within the sound discretion of the court (see, People v. Frederick, 45 N.Y.2d 520, 524-525, 410 N.Y.S.2d 555, 382 N.E.2d 1332; People v. Hagzan, 155 A.D.2d 616, 617, 547 N.Y.S.2d 670). Among the grounds supporting the exercise of that discretion are claims of innocence, fraud or mistake (People v. Cance, 155 A.D.2d 764, 764-765, 547 N.Y.S.2d 702). After defendant pleaded guilty, he made a generalized assertion of innocence in a motion to withdraw his guilty plea. At the hearing on his motion, however, defendant stated that he wished to withdraw the guilty plea because he had discovered that his codefendant would not be testifying against him. That ground was insufficient. "[A] defendant is not entitled to withdraw his guilty plea merely because he discovers that he misapprehended the quality of the State's case" (People v. Lesesne, 173 A.D.2d 407, 570 N.Y.S.2d 40). Further, the generalized assertion of innocence, unsupported by the record, was also insufficient to entitle defendant to withdraw his plea (see, People v. Chestnut, 188 A.D.2d 480, 481, 590 N.Y.S.2d 906, lv. denied, 81...