THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BRANDON HEMINGWAY DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

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

Memorandum: Defendant was previously convicted upon his plea of guilty of criminal sexual act in the first degree (Penal Law former § 130.50 [1]). On a prior appeal, we reversed the judgment of conviction and vacated defendant's plea because “County Court [Fahey, J.] failed to advise him, at the time of the plea, of the period of postrelease supervision that would be imposed at sentencing” (People v Hemingway, 166 AD3d 1524, 1525 [4th Dept 2018]). Upon remittal, defendant again pleaded guilty to criminal sexual act in the first degree with a promise of a lesser sentence than that imposed under the first plea. Prior to sentencing, however, defendant submitted a pro se motion seeking to withdraw his plea. “Defense counsel refused to adopt defendant's pro se motion and, in response to questioning by the court, explained that the reason therefor was that he did not see any grounds for the motion. Defendant ultimately withdrew his motion and the court imposed sentence” (People v Hemingway, 210 AD3d 1419, 1420 [4th Dept 2022]).

On defendant's appeal from that judgment, we held the matter and reserved decision on the grounds that the court (Dougherty, J.) “failed to determine whether defendant should be afforded youthful offender treatment” and that “defense counsel improperly took a position adverse to defendant on his pro se motion to withdraw his plea and provided him with inaccurate advice about the legal consequences of our prior ruling” (id.). We remitted the matter “for assignment of counsel, a de novo determination of defendant's pro se motion to withdraw his plea and, if necessary, to make and state for the record a determination of whether defendant should be afforded youthful offender status” (id. at 1421). On remittal, the court (Limpert, J.) assigned new defense counsel, addressed defendant's motion to withdraw the plea on the merits, denied that motion, and denied his request for youthful offender treatment.

Defendant contends that the matter must be “remitted for actual de novo review” of his motion to withdraw the plea. It is defendant's position that the court's determination was erroneous with respect to certain essential facts, as evidenced by the court's reference to the first plea instead of the second plea, i.e., the actual plea challenged in the pro se motion to withdraw the plea. Defendant also asserts that a de novo review is required to determine whether incorrect information affected his decision to withdraw his pro se motion. We reject those contentions.

Defendant, represented by new defense counsel and before a new judge, had a de novo review of his pro se motion to withdraw his plea, as it was submitted from the beginning. On that de novo review, the court denied the motion. Thus, the question before us is whether the court properly denied the motion on the de novo review without new submissions or a hearing.

With respect to the merits, “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 inducing [a] plea” (People v Alexander, 203 AD3d 1569, 1570 [4th Dept 2022], lv denied 38 NY3d 1031 [2022] [internal quotation marks omitted]; see People v Davis, 129 AD3d 1613, 1614 [4th Dept 2015], lv denied 26 NY3d 966 [2015]). We perceive no abuse of discretion in the denial of the motion, and defendant's claim that the court, in denying the pro se motion upon remittal, considered the wrong plea is based largely on speculation.

Although the court referred to the wrong sentencing judge in its discussion of defense counsel's request for another reduced sentence, it does not necessarily follow that the court considered the wrong plea transcript when denying defendant's motion to withdraw his plea. In the absence of substantial evidence to the contrary, we may presume that the court considered the proper plea when denying defendant's motion (see generally People v Dominique, 90 NY2d 880, 881 [1997]).

Contrary to defendant's further contention, the court did not err in failing to state on the record its reasons for denying his request for youthful offender treatment, and there is no need for us to remit “for a proper determination.” Although a court is required to state on the record its reasons for granting a defendant's request for youthful offender treatment (see CPL 720.10 [3]), it is not required to state its reasons for denying such a request (see People v Minemier, 29 NY3d 414, 420 [2017]; People v Goins, 246 AD3d 1507, 1507 [4th Dept 2026], lv denied 45 NY3d 971 [2026]). Moreover, the court did state on the record that, given the crime of which defendant was convicted, he could not be considered an eligible youth unless the court determined that certain statutory factors existed (see CPL 720.10 [3]), and the court further stated that the factors necessary to support eligibility were not present here. Defendant does not challenge that determination on appeal.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court