People v. Cherry

• Decision Date: 24 November 2004
• Docket Number: 14950.
• Citation: People v. Cherry, 12 AD3d 949, 785 N.Y.S.2d 198, 2004 NY Slip Op 8737 (N.Y. App. Div. 2004)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JONATHAN CHERRY, Appellant.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 949

785 N.Y.S.2d 198

2004 NY Slip Op 08737

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JONATHAN CHERRY, Appellant.

14950.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 24, 2004.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered July 18, 2003, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Carpinello, J.

Defendant, a prison inmate, was charged with the crimes of promoting prison contraband in the first degree and attempted assault in the second degree (two counts) after he was discovered to be in possession of a 6 by 1½-inch sharpened plexiglass shank during a physical altercation with another inmate. Represented by the Public Defender, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree in full satisfaction of the indictment with the understanding that he would be sentenced, as a second felony offender, to a prison term of 1 1/2 to 3 years.

Prior to sentencing, defendant moved to withdraw his plea, based on the alleged incompetence of his counsel. County Court denied the motion and refused to assign new counsel, finding no basis for defendant's claim that his assigned counsel ineffectively represented him during or before the plea proceeding. The court thereafter sentenced defendant in accordance with the agreement. Defendant now appeals, claiming that County Court erred in refusing to assign new counsel and in denying his motion to withdraw his guilty plea without a hearing.

We affirm. It is well settled that "[t]he decision to permit withdrawal of a guilty plea is a matter within the trial court's sound discretion, and a hearing is required only where the record presents a genuine question of fact as to its voluntariness" (People v De Fabritis, 296 AD2d 664, 664 [2002]; see People v Bolden, 289 AD2d 607, 608 [2001], lv denied 98 NY2d 649 [2002]; People v Graham-Harrison, 272 AD2d 780, 781 [2000]). The record fails to support defendant's contention that he was denied the effective assistance of counsel. Defense counsel made appropriate motions and defendant was afforded a favorable plea agreement. Moreover, the minutes of the plea allocution reveal "a knowing, intelligent and voluntary plea of guilty" to the crime of attempted promoting prison contraband in the first degree (People v Dashnaw, 260 AD2d 658, 659 [1999], ...