PEOPLE v. HOWELL (2009)

 On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1] ), defendant contends that County Court abused its discretion in denying his motion to withdraw his plea at the time of sentencing.   We reject that contention.   According to defendant, he entered the guilty plea under the mistaken belief that the sentence imposed would run concurrently with a sentence to be imposed in a matter pending in federal court.   It is well settled, however, that a court's “ ‘refusal to permit withdrawal does not constitute an abuse of ․ discretion unless there is some evidence of innocence, fraud, or mistake in [the inducement of] the plea’ ” (People v. Thomas, 17 A.D.3d 1047, 1047, 793 N.Y.S.2d 652, lv. denied 5 N.Y.3d 770, 801 N.Y.S.2d 264, 834 N.E.2d 1274;  see CPL 220.60[3];  People v. Pillich, 48 A.D.3d 1061, 849 N.Y.S.2d 817, lv. denied 11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105).   There is no such evidence here.   Rather, the record establishes that the terms of the sentencing commitment were “susceptible to but one interpretation” (People v. Cataldo, 39 N.Y.2d 578, 580, 384 N.Y.S.2d 763, 349 N.E.2d 863;  see People v. Ramos, 56 A.D.3d 1180, 866 N.Y.S.2d 893;  People v. Reyes, 167 A.D.2d 920, 921, 561 N.Y.S.2d 998, lv. denied 77 N.Y.2d 842, 567 N.Y.S.2d 211, 568 N.E.2d 660), and the court adhered to that sentencing commitment (see Cataldo, 39 N.Y.2d at 580, 384 N.Y.S.2d 763, 349 N.E.2d 863).

The challenge by defendant to the factual sufficiency of the plea allocution is unpreserved for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5), and it also is encompassed by his valid waiver of the right to appeal (see People v. Grimes, 53 A.D.3d 1055, 860 N.Y.S.2d 723, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101;  People v. Jackson, 50 A.D.3d 1615, 856 N.Y.S.2d 432, lv. denied 10 N.Y.3d 960, 863 N.Y.S.2d 144, 893 N.E.2d 450).   In any event, his challenge is without merit.

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

MEMORANDUM: