People v Miles

People v Miles 2016 NY Slip Op 03217 Decided on April 28, 2016 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 28, 2016
106581

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

MICHAEL R. MILES, Appellant.

Calendar Date: March 21, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

Hinman, Howard & Kattell LLP, East Greenbush (Linda B. Johnson of counsel), for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton, for respondent.

Egan Jr., J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered April 17, 2013, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

In satisfaction of a six-count indictment, defendant pleaded guilty to attempted burglary in the second degree. Prior to sentencing, defendant obtained new counsel and moved to withdraw his plea, primarily asserting that he was confused as to the sentence to be imposed under the plea agreement. County Court denied the motion and, in accordance with the plea agreement, sentenced defendant, as a second felony offender, to a prison term of four years, to be followed by five years of

postrelease supervision. Defendant now appeals.

We affirm. Defendant contends that his plea was not knowing, voluntary and intelligent because he was confused as to the sentence to be imposed. During the plea allocution, County Court expressly reviewed the terms of the plea agreement, including the agreed-upon sentence, confirmed that defendant agreed to such terms and explained the rights that defendant was forgoing by pleading guilty. In response to the court's inquiries, defendant denied that he had been forced or threatened to accept the plea, agreed that he was freely and voluntarily pleading guilty after conferring with counsel and thereafter admitted his guilt. While defendant asked whether he could participate in a program to obtain a reduced sentence or early release, County Court dispelled any confusion by restating the agreed-upon sentence, explaining the law relating [*2]to early release and affirmatively stating that defendant would not receive a reduced sentence at a later date. Accordingly, we conclude that defendant's plea was knowing, voluntary and intelligent (see People v Miner, 120 AD3d 1449, 1449-1450 [2014]; People v White, 85 AD3d 1493, 1494 [2011]).

We also are unpersuaded by defendant's assertion that County Court failed to sufficiently investigate the allegations raised in his motion to withdraw his guilty plea. The nature and extent of the fact-finding measures required to determine a motion to withdraw a plea lie within the discretion of the trial court (see People v Tinsley, 35 NY2d 926, 927 [1974]; People v Saunders, 127 AD3d 1420, 1421 [2015], lv denied 26 NY3d 935 [2015]). An evidentiary hearing is rarely necessary and "'is required only where the record presents a genuine question of fact as to . . . voluntariness'" (People v Atkinson, 58 AD3d 943, 943 [2009], quoting People v De Fabritis, 296 AD2d 664, 664 [2002], lv denied 99 NY2d 557 [2002]; see People v Mitchell, 21 NY3d 964, 966 [2013]). Here, County Court acknowledged defendant's assertion that he was confused about the sentence to be imposed, permitted defendant an opportunity to explain the reason for his confusion and read relevant portions of defendant's plea allocution into the record. Inasmuch as defendant's assertions were patently contradicted by the minutes of his plea allocution, County Court did not abuse its discretion in denying the motion without conducting a more extensive inquiry (see People v O'Neill, 116 AD3d 1240, 1241 [2014]; People v Pittman, 104 AD3d 1027, 1027-1028 [2013], lvs denied 21 NY3d 1008 [2013]; People v Singletary, 51 AD3d 1334, 1334 [2008], lv denied 11 NY3d 741 [2008]).

Finally, defendant claims that he received ineffective assistance of counsel in connection with his motion to withdraw his plea. While defense counsel indicated to County Court that he did not feel comfortable making a motion to withdraw defendant's plea, counsel's statements were made weeks before he ultimately submitted a motion on defendant's behalf and, at the time County Court heard the motion, counsel did not interfere with or affirmatively undermine the allegations raised. Moreover, the arguments advanced by defendant in the motion were not the same arguments that counsel had previously commented upon and, given the passage of time and the factual inquiry undertaken by the court, it does not appear that counsel's statements "influence[d] County Court's determination in any meaningful way" (People v Curry, 123 AD3d 1381, 1383 [2014], lv denied 25 NY3d 950 [2015]; see People v Wester, 82 AD3d 1677, 1678 [2011], lvs denied 17 NY3d 793, 803 [2011]). Under these circumstances, we do not find that counsel took a position that was adverse to defendant (see People v Sylvan, 108 AD3d 869, 871 [2013], lv denied 22 NY3d 1091 [2014]; People v Pimentel, 108 AD3d 861, 863 [2013], lv denied 21 NY3d 1076 [2013]; compare People v McCray, 106 AD3d 1374, 1375 [2013]).

Garry, J.P., Lynch, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.