People v. Morris

• Decision Date: 20 April 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Allen MORRIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03024
94 A.D.3d 1450
942 N.Y.S.2d 725

The PEOPLE of the State of New York, Respondent,
v.
Allen MORRIS, Defendant–Appellant.

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

April 20, 2012.

[942 N.Y.S.2d 726]

Matthew E. Brooks, Lockport, for Defendant–Appellant.

Cindy F. Intschert, District Attorney, Watertown, for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[94 A.D.3d 1450] Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). Defendant contends that County Court abused its discretion in denying his motion to withdraw the guilty plea on the ground that he was misinformed with respect to the negotiated sentence to be imposed. Although defendant's contention survives his waiver of the right to appeal ( see People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053), we conclude that it is without merit. “ ‘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. Pillich, 48 A.D.3d 1061, 849 N.Y.S.2d 817, lv. denied 11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105; see People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802). There is no such evidence here. Rather, the record establishes that the court properly informed defendant that the negotiated sentence was required to run consecutively to the prior undischarged sentence that defendant was serving at that time, and that any jail time credit to be applied would be determined by the Department of Correctional Services ( see § 70.25[2–a]; § 70.30[3]; Correction Law § 600–a; cf. People v. Lee, 64 A.D.3d 1236, 1237, 881 N.Y.S.2d 355; People v. Ingoglia, 305 A.D.2d 1002, 1003, 759 N.Y.S.2d 620, lv.

[942 N.Y.S.2d 727]

denied 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485).

Defendant further contends that the court failed to make an appropriate inquiry into his two requests for substitution of counsel. The initial request for new assigned counsel was set forth in a brief notation in defense counsel's “status report” to the court indicating that defendant did not wish to accept the [94 A.D.3d 1451] plea offer made during a pretrial conference. No reasons were provided for defendant's request, and defendant did not repeat that request or raise any complaints concerning defense counsel's representation at subsequent appearances before the court. Defendant's contention with respect to his initial request for substitution of counsel “is encompassed by the plea and the waiver of the right to appeal except to...