People v. Clark

• Decision Date: 06 January 2000
• Citation: 704 N.Y.S.2d 149,261 A.D.2d 97
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>WILLIAM CLARK, Appellant.

261 A.D.2d 97

704 N.Y.S.2d 149

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.WILLIAM CLARK, Appellant.

PETERS, J. P.

January 6, 2000.

Michael A. Feit, Albany, for appellant.

Sol Greenberg, District Attorney of Albany County (David M. Rossi of counsel), for respondent.

SPAIN, CARPINELLO, GRAFFEO and MUGGLIN, JJ., concur.

OPINION OF THE COURT

PETERS, J. P.

Defendant pleaded guilty to criminal contempt in the first degree before County Court (Rosen, J.) in satisfaction of an August 1997 indictment which had charged him with one count of criminal contempt in the first degree (Penal Law § 215.51 [b] [vi]) and one count of reckless endangerment in the second degree (Penal Law § 120.20). These charges arose out of his violation of an order of protection when he forced a vehicle operated by the victim into oncoming traffic and attempted to keep it there. On the same day as the aforementioned plea, defendant pleaded guilty to attempted sexual abuse in the first degree before County Court (Breslin, J.) in satisfaction of a November 1997 indictment which had charged him with one count each of sexual abuse in the first degree (Penal Law § 130.65 [1]), criminal contempt in the first degree (Penal Law § 215.51 [b] [v]) and unlawful imprisonment in the second degree (Penal Law § 135.05). These charges arose out of a September 1997 incident in which he again violated an order of protection regarding this victim when he restrained her in a shed on her property, touched her breast and/or genitals and/or buttocks, while he denied and/or used implied threats to impede her exit.

On May 8, 1998, at the first of two sentencing hearings scheduled for that day, defendant, pro se, orally moved before County Court (Breslin, J.) to withdraw his plea to the charge of attempted sexual abuse in the first degree, contending that he was denied the effective assistance of counsel and that both the court and his counsel failed to inform him of certain laws and facts before his plea. The motion was denied and he was sentenced as a second felony offender to a prison term of 2 to 4 years for this conviction. At the second sentencing hearing before County Court (Rosen, J.), defendant unsuccessfully moved, pro se, to withdraw his plea to criminal contempt in the first degree. He was sentenced as second felony offender to a prison term of 1½ to 3 years to run consecutively to the prior sentence. He appeals both judgments.

Defendant's right to challenge the voluntariness of his pleas has been properly preserved by his motions to withdraw (see, People v Yell, 250 AD2d 869, lv denied 92 NY2d 863). Examining the transcript of the plea colloquies, we note that on both occasions, County Court scrupulously apprised defendant of the effect of his plea and confirmed that he engaged in the conduct at issue, understood the questions asked and the potential sentences to be levied. Defendant further affirmed that he understood that he was waiving both his right to trial and his right to appeal. Upon these representations, County Court properly denied the motions to withdraw (see, People v Fernandez, 263 AD2d 673).

It is well settled that the trial court is vested with discretion to permit a defendant to withdraw his guilty plea (see, People v Yell, supra; People v Davis, 250 AD2d 939); absent a claim of innocence substantiated by some evidence, or fraud or mistake in the inducement, a withdrawal of the plea will not be permitted (see, People v Gibson, 261 AD2d 710; People v Davis, supra). At sentencing on the attempted sexual abuse charge, defendant challenged the voluntariness of his plea, contending that he was not guilty of the crime by recanting many of his statements. He further alleged, inter alia, that his attorney coerced him into accepting the plea agreement by providing him with incorrect information concerning the maximum sentence. The record reveals, however, that admissions made by defendant as to his conduct constituted the crime of attempted sexual abuse in the first degree (see, Penal Law § 130.65 [1]; People v Hernandez, 93 NY2d 261, 265). As there were no contentions before County Court (Rosen, J.) alleging that his plea of guilty to criminal contempt in the first degree was...