People v. Garner

• Decision Date: 08 July 2011
• Citation: 926 N.Y.S.2d 796,2011 N.Y. Slip Op. 05892,86 A.D.3d 955
• Parties: The PEOPLE of the State of New York, Respondent,v.Michael GARNER, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 955
926 N.Y.S.2d 796
2011 N.Y. Slip Op. 05892

The PEOPLE of the State of New York, Respondent,
v.
Michael GARNER, Jr., Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

July 8, 2011.

[926 N.Y.S.2d 797]

Kristin F. Splain, Conflict Defender, Rochester (Richard W. Youngman of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.

[926 N.Y.S.2d 798]

MEMORANDUM:

[86 A.D.3d 955] On appeal from a judgment convicting him upon his plea of guilty of one count of robbery in the first degree (Penal Law § 160.15[4] ), defendant contends that his plea was not knowingly, intelligently and voluntarily entered and thus that Supreme Court erred in denying his motion to withdraw the plea. We reject that contention. “ Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea” ( People v. Robertson, 255 A.D.2d 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188). During the plea colloquy, defendant admitted forcibly stealing the victim's property while his accomplice displayed a firearm, and he acknowledged that he discussed the plea with defense counsel and understood the plea proceedings. Defendant's contention that he was pressured into accepting the plea is belied by his statements during the plea proceedings ( see People v. Beaty, 303 A.D.2d 965, 755 N.Y.S.2d 911, lv. denied 100 N.Y.2d 559, 763 N.Y.S.2d 816, 795 N.E.2d 42). In addition, defendant's conclusory and unsubstantiated claim of innocence is belied by his admissions during the plea colloquy ( see People v. Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915), and his claim that he was under “duress” and has no recollection of the plea do not require vacatur of the plea ( see People v. Alexander, 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802). Thus, we conclude that defendant's plea was knowingly, intelligently and voluntarily [86 A.D.3d 956] entered ( see generally People v. Singletary, 51 A.D.3d 1334, 858 N.Y.S.2d 483, lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664).

We reject defendant's further contention that he was denied...