PEOPLE v. THOMAS (2005)

 On appeal from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[3] ), defendant contends that his plea was not knowingly and voluntarily entered and that County Court therefore erred in denying his motion to withdraw his plea.   Although defendant preserved his contention for our review by moving to withdraw the plea (see People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564), we conclude that his contention lacks merit.  “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 [the inducement of] the plea” (People v. Robertson, 255 A.D.2d 968, 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 People v. Pane, 292 A.D.2d 850, 738 N.Y.S.2d 799, lv. denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615).   Contrary to the contention of defendant, he did not raise an intoxication defense.   The record establishes that, on two separate occasions prior to his motion to withdraw the plea, defendant admitted the elements of the crime and did not raise that defense (cf. People v. Tomaino, 134 A.D.2d 859, 521 N.Y.S.2d 596;   People v. Moore, 78 A.D.2d 997, 433 N.Y.S.2d 689).   Indeed, in his motion papers seeking to withdraw the plea defendant did not state under oath that he was intoxicated at the time of the crime or that he had no recollection of the events surrounding the crime, and in support of his present contention he relies solely on a statement concerning his alleged intoxication that he made to a probation officer.   Also contrary to the contention of defendant, he validly waived his right to appeal (see People v. Vallejo, 261 A.D.2d 962, 690 N.Y.S.2d 374, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949), and that waiver encompasses his challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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

MEMORANDUM: