PEOPLE v. KYSER (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ).   We conclude that County Court did not abuse its discretion in denying the motion of defendant to withdraw his plea before sentencing.  “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, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188;  see generally CPL 220.60 [3] ).   Here, the contention of defendant that he was not thinking clearly at the time of the plea and was pressured into accepting the plea by defense counsel is “belied by his statements made under oath during the plea colloquy” (People v. Spikes, 28 A.D.3d 1101, 1102, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809).   The further contention of defendant that he should have been permitted to withdraw his plea because he was subject to an illegal search does not survive his valid waiver of the right to appeal (see People v. Martin, 43 A.D.3d 1316, 1316-1317, 843 N.Y.S.2d 740;  see also People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754).   In any event, that contention lacks merit.   It is well settled that “ ‘[a] defendant is not entitled to withdraw his plea merely because he discovers ․ that his calculus misapprehended the quality of the State's case’ ” (People v. Jones, 44 N.Y.2d 76, 81, 404 N.Y.S.2d 85, 375 N.E.2d 41, cert. denied 439 U.S. 846, 99 S.Ct. 145, 58 L.Ed.2d 148, quoting Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: