PEOPLE v. KIMMONS (2007)

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).   Contrary to the contention of defendant, County Court did not abuse its discretion in denying his oral motion to withdraw his plea of guilty without conducting a hearing.   “Only in the rare instance will a defendant be entitled to an evidentiary hearing” (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544).   Here, defendant's belated and conclusory allegations of innocence in support of the motion are belied by the plea colloquy (see People v. Jackson, 34 A.D.3d 1304, 824 N.Y.S.2d 552, lv. denied 8 N.Y.3d 846, 830 N.Y.S.2d 705, 862 N.E.2d 797), and there is no support in the record for defendant's contention that the informant recanted.

 Although defendant failed to preserve for our review his further contention that the court failed to comply with CPL 400.21 in sentencing him as a second felony offender (see People v. Simpson, 35 A.D.3d 1182, 1183, 826 N.Y.S.2d 547;  People v. Beu, 24 A.D.3d 1257, 805 N.Y.S.2d 885, lv. denied 6 N.Y.3d 809, 812 N.Y.S.2d 449, 845 N.E.2d 1280;  see also People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938), we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The People concede that they did not file a second felony statement pursuant to CPL 400.21, and we conclude that there was no substantial compliance with the statute (cf. People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338).   We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing in compliance with CPL 400.21.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Niagara County Court for resentencing.

MEMORANDUM: