People v. Nichiporuk
| Decision Date | 15 March 2019 |
| Docket Number | 1362,KA 16–00890 |
| Citation | 170 A.D.3d 1597,94 N.Y.S.3d 491 (Mem) |
| Parties | The PEOPLE of the State of New York, Respondent, v. Inna NICHIPORUK, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
170 A.D.3d 1597
94 N.Y.S.3d 491 (Mem)
The PEOPLE of the State of New York, Respondent,
v.
Inna NICHIPORUK, Defendant-Appellant.
1362
KA 16–00890
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: March 15, 2019
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a plea of guilty of felony driving while intoxicated ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][ii] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ), defendant contends that County Court erred in denying her motion to withdraw her guilty plea. We affirm.
Contrary to defendant's contention, the court did not abuse its discretion in denying her motion to withdraw her plea on the ground of actual innocence. It is well established that "[p]ermission 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. Rosekrans, 149 A.D.3d 1563, 1564, 52 N.Y.S.3d 793 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] [internal quotation marks omitted] ). On her motion, defendant asserted that she had a
"valid defense" to the crimes, i.e., that she had not operated the vehicle on the night of her arrest. In support of that purported defense, defendant submitted the affidavit of her brother, who averred that he had been on his way to pick defendant up from the parking lot in which she was arrested. Even assuming the truth of the brother's affidavit, we conclude that his averments do not establish that defendant had not been driving unlawfully before arriving at the parking lot. Indeed, the fact that, at the time of her arrest, defendant was found alone, intoxicated, and in the driver's seat of a running vehicle with her seat belt fastened suggests that she had operated the vehicle before being found by the police in the commercial parking lot (see People v. Dunster, 146 A.D.3d 1029, 1029–1030, 44 N.Y.S.3d 272 [3d Dept. 2017], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; see also People v. Annis, 126 A.D.3d 1525, 1526, 6 N.Y.S.3d 363 [4th Dept. 2015] ; People v. Panek, 305 A.D.2d 1098, 1098, 759 N.Y.S.2d 619 [4th Dept. 2003], lv. denied 100 N.Y.2d 623, 767 N.Y.S.2d 407, 799 N.E.2d 630 [2003] ). To the extent that defendant denied having operated the vehicle in letters she submitted to the court and in remarks she made to her probation officer during the presentence interview, those unsworn
statements are not evidence in admissible form (see generally Rosekrans, 149 A.D.3d at 1564, 52 N.Y.S.3d 793 ; People v....
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