THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL LORRAINE DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.09[1] ), defendant contends that County Court abused its discretion in denying his motion to withdraw his plea at sentencing because his plea was not knowingly, voluntarily and intelligently entered.  According to defendant, he was under the misunderstanding at the time of the plea that, if he pleaded guilty, other charges pending against him would be dismissed, and the court did not conduct a sufficient inquiry into his misunderstanding to enable it to make an informed decision to deny the motion.  Although defendant's contention survives his valid waiver of the right to appeal (see People v. Jackson, 126 AD3d 1512, 1512, lv denied 25 NY3d 1202), we nevertheless conclude that it lacks merit.  It is well settled that “[p]ermission 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, lv denied 92 N.Y.2d 1053;  see People v. Zimmerman, 100 AD3d 1360, 1361, lv denied 20 NY3d 1015).  There is no such evidence on this record.  Where, as here, “a sentencing court keeps the promises it made at the time it accepted a plea of guilty, a defendant should not be permitted to withdraw his plea on the sole ground that he misinterpreted the agreement.  Compliance with a plea bargain is to be tested against an objective reading of the bargain, and not against a defendant's subjective interpretation thereof” (People v. Cataldo, 39 N.Y.2d 578, 580;  see People v. Guillory, 81 AD3d 1394, 1395, lv denied 16 NY3d 895).  Inasmuch as “the plea bargain here is susceptible to but one interpretation,” we conclude that the court did not abuse its discretion in denying defendant's motion to withdraw his plea (Cataldo, 39 N.Y.2d at 580).  Furthermore, defendant was “afforded [a] reasonable opportunity to present his contentions,” and the record establishes that the court made “an informed determination” in denying the motion (People v. Tinsley, 35 N.Y.2d 926, 927;  see People v. Alston, 23 AD3d 1041, 1042, lv denied 6 NY3d 752).

Finally, we conclude that the valid waiver of the right to appeal encompasses defendant's challenge to the severity of the bargained-for sentence (see People v. Lopez, 6 NY3d 248, 256;  see generally People v. Lococo, 92 N.Y.2d 825, 827;  People v. Hidalgo, 91 N.Y.2d 733, 737).

Frances E. Cafarell

Clerk of the Court