PEOPLE v. HUSTED (2023)

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 disseminating indecent material to minors in the first degree as a sexually motivated felony (Penal Law §§ 130.91, 235.22), use of a child in a sexual performance as a sexually motivated felony (§§ 130.91, 263.05), possessing a sexual performance by a child (§ 263.16), endangering the welfare of a child (§ 260.10 [1]), and two counts of sexual abuse in the first degree (§ 130.65 [4]), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of his sentence (see People v. Seay, 201 A.D.3d 1361, 1361-1362, 158 N.Y.S.3d 697 [4th Dept. 2022]), we conclude that the sentence is not unduly harsh or severe.

Contrary to defendant's further contention, County Court did not abuse its discretion in denying his motion to withdraw his plea of guilty without additional inquiry. “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[ ] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances” (People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010] [internal quotation marks omitted]). Where the motion is “patently insufficient on its face, a court may simply deny the motion without making any inquiry” (People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013]). Here, in response to defendant's initial pro se motion to withdraw his plea of guilty, the court assigned new defense counsel and allowed counsel to file supplemental motion papers. Thus, the court allowed defendant “reasonable opportunity to advance his claims,” and no further inquiry was required (People v. Saccone, 211 A.D.3d 1520, 1521, 180 N.Y.S.3d 425 [4th Dept. 2022], lv denied 39 N.Y.3d 1113, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2023] [internal quotation marks omitted]; see People v. Harris, 206 A.D.3d 1711, 1712, 169 N.Y.S.3d 441 [4th Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 207, 197 N.E.3d 487 [2022]). The court did not abuse its discretion in denying the motion inasmuch as all of defendant's claims are belied by the transcript of the plea colloquy (see People v. Rados, 210 A.D.3d 1516, 1517-1518, 176 N.Y.S.3d 827 [4th Dept. 2022]; People v. Floyd, 210 A.D.3d 1530, 1531, 178 N.Y.S.3d 675 [4th Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 808, 204 N.E.3d 444 [2023]; see also People v. Freeland, 198 A.D.3d 1380, 1380, 155 N.Y.S.3d 267 [4th Dept. 2021]).

Defendant failed to preserve for our review his contention that his plea of guilty was not knowing, intelligent, and voluntary because “his motion to withdraw his plea was made on grounds different from those advanced on appeal” (People v. Gibson, 140 A.D.3d 1786, 1787, 32 N.Y.S.3d 413 [4th Dept. 2016], lv denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016]). This case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).