People v. Watkins

• Citation: 107 A.D.3d 1416,2013 N.Y. Slip Op. 04147,966 N.Y.S.2d 637
• Parties: The PEOPLE of the State of New York, Respondent, v. Gregory WATKINS, Defendant–Appellant.
• Decision Date: 07 June 2013
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1416
966 N.Y.S.2d 637
2013 N.Y. Slip Op. 04147

The PEOPLE of the State of New York, Respondent,
v.
Gregory WATKINS, Defendant–Appellant.

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

June 7, 2013.

Robert A. Dinieri, Clyde, for Defendant–Appellant.

[966 N.Y.S.2d 638]

Richard M. Healy, District Attorney, Lyons (Christopher Bokelman of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.

MEMORANDUM:

[107 A.D.3d 1416]Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of burglary in the first degree (Penal Law § 140.30[2] ), and one count each of assault in the second degree (§ 120.05[1] ) and assault in the third degree (§ 120.00[1] ). Contrary to defendant's contention, County Court did not abuse its discretion in denying his motion to withdraw the plea ( see People v. Wolf, 88 A.D.3d 1266, 1266–1267, 930 N.Y.S.2d 382,lv. denied18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296;People v. Tracy, 77 A.D.3d 1402, 1403, 907 N.Y.S.2d 905,lv. denied16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053;see generally People v. Dozier, 74 A.D.3d 1808, 1808, 902 N.Y.S.2d 475,lv. denied15 N.Y.3d 804, 908 N.Y.S.2d 163, 934 N.E.2d 897). “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, 968, 681 N.Y.S.2d 919,lv. denied92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188;see [107 A.D.3d 1417]People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427,lv. denied20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334). Defendant contended in support of his motion that he was induced to plead guilty based on the originally scheduled sentencing date, which allegedly afforded him time to post bail prior to sentencing, and that the court thereafter advanced the date of sentencing such that he was unable to post bail. Inasmuch as the date on which sentencing was to occur was not part of the plea agreement, we conclude that the court did not abuse its discretion in denying defendant's motion to withdraw his plea on the grounds of duress, misrepresentation or fraud ( seeCPL 220.60[3]; People v. Todd, 276 A.D.2d 913, 914, 715 N.Y.S.2d 464). We reject defendant's further contention that, when the court advanced the date for sentencing, it thereby...