People v. Thomas, 15397.

• Decision Date: 12 January 2006
• Docket Number: 15397.
• Citation: 806 N.Y.S.2d 800,25 A.D.3d 879,2006 NY Slip Op 00189
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ARISTELLE THOMAS, Appellant.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 879

806 N.Y.S.2d 800

2006 NY Slip Op 00189

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ARISTELLE THOMAS, Appellant.

15397.

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 12, 2006.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 1, 2003 in Albany County, convicting defendant upon his plea of guilty of the crime of assault in the first degree.

Mugglin, J.

Defendant pleaded guilty to the violent felony of assault in the first degree in full satisfaction of a six-count indictment and was sentenced as a second felony offender to a prison term of 17 years with five years of postrelease supervision. Prior to sentencing, defendant sought to withdraw his plea, claiming that despite being innocent, he was pressured to enter his plea by the "whole court system." Following a hearing, the motion was denied. Defendant now appeals from the judgment of conviction. Defendant's appellate counsel argues either that defendant should be allowed to withdraw his plea of guilty or, in the alternative, that his sentence was harsh and excessive. Defendant, in his pro se supplemental brief, argues that both his prior attorney and his last attorney were ineffective and that Supreme Court erred by finding him to be a second felony offender.

Whether to allow a defendant to withdraw his guilty plea is a matter committed to the discretion of the trial court (see People v Zakrzewski, 7 AD3d 881, 881 [2004]). "`Generally, a guilty plea may not be withdrawn absent some evidence or claim of innocence, fraud or mistake in its inducement'" (People v Coss, 19 AD3d 943, 943-944 [2005], lv denied 5 NY3d 805 [2005], quoting People v Davis, 250 AD2d 939, 940 [1998]). Furthermore, "`[w]here a defendant has been fully informed of the rights he is waiving by pleading guilty and proceeds to admit the acts constituting the crime, a subsequent protestation of innocence which is not substantiated by any evidence is generally insufficient to support a request for vacatur of the plea'" (People v Davis, supra at 940, quoting People v Paulk, 142 AD2d 754, 754 [1988], lv dismissed 72 NY2d 960 [1988]).

Prior to entry of his plea, defendant engaged in a colloquy with Supreme Court in which he freely and voluntarily admitted the facts underlying the crime to which he intended to plead guilty, acknowledged and waived his constitutional rights, and acknowledged his complete satisfaction with his present attorney, although he expressed some dissatisfaction with his prior attorney. Under these circumstances, we discern no abuse of Supreme Court's discretion in denying defendant's motion to withdraw his guilty plea, particularly in view of defendant's failure to point to any evidentiary support for his protestation of innocence.

Next, defendant was sentenced in accordance with his negotiated plea...