People v. Robertson

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Robertson, 681 N.Y.S.2d 919, 255 A.D.2d 968 (N.Y. App. Div. 1998)
• Decision Date: 13 November 1998
• Parties: 1998 N.Y. Slip Op. 9755 PEOPLE of the State of New York, Respondent, v. James D. ROBERTSON, Appellant.

Page 919

681 N.Y.S.2d 919

1998 N.Y. Slip Op. 9755

PEOPLE of the State of New York, Respondent, v. James D. ROBERTSON, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 13, 1998.

Public Defender's Office, Daniel E. Seaman by Leonard Tinley, Lockport, for appellant.

District Attorney's Office, Matthew J. Murphy by Thomas Brandt, Lockport, for respondent.

Before DENMAN, P.J., HAYES, PIGOTT and FALLON, JJ.

MEMORANDUM:

There is no merit to the contention of defendant that County Court abused its discretion in denying his motion to withdraw the guilty plea. Permission to withdraw a guilty plea rests solely within the court's discretion (see, CPL 220.60[3]; People v. Cance, 155 A.D.2d 764, 764-765, 547 N.Y.S.2d 702; People v. Kelsch, 96 A.D.2d 677, 466 N.Y.S.2d 535), 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 (see, People v. Cance, supra, at 764-765, 547 N.Y.S.2d 702; People v. Randolph, 78 A.D.2d 566, 431 N.Y.S.2d 734). The record belies the contention that defendant was fraudulently induced to enter into the guilty plea by the statement of the prosecutor that there were no outstanding warrants for defendant. The prosecutor told defendant at the plea hearing that there was an outstanding warrant issued by the Buffalo Police Department. In addition, the court allowed defendant and defense counsel to speak at sentencing and the court questioned defendant, thus affording defendant the equivalent of a hearing on the issue of fraudulent inducement (see, People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544; People v. Sanchez, 210 A.D.2d 57, 58, 619 N.Y.S.2d 48,...