PEOPLE v. ORT (2001)

Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered April 10, 2000, convicting defendant upon his plea of guilty of the crimes of sodomy in the first degree and sexual abuse in the first degree.

In satisfaction of pending charges consisting of two counts each of sodomy in the first degree and sexual abuse in the first degree, defendant entered a plea of guilty to one count of each crime.   Prior to sentencing, he moved to withdraw the plea and, after appointing substitute counsel and conducting a hearing at which defendant and his former counsel testified, County Court denied the motion.   Defendant was sentenced to the agreed-upon concurrent determinate prison terms of 13 years on the sodomy charge and seven years on the sexual abuse charge.   On this appeal, defendant contends that County Court erred in denying his motion to withdraw the plea.   We disagree.

 Whether to permit defendant to withdraw the guilty plea was a matter within County Court's sound discretion and, absent an abuse of that discretion, the court's determination will not be disturbed (see, People v. Bonilla, 285 A.D.2d 746, 747, 728 N.Y.S.2d 557, 558).   Defendant's claim of mistake and other allegations concerning the knowing and voluntary nature of his plea, which are contrary to his plea allocution and were contradicted by the testimony of the attorney who represented defendant during the period prior to and including the plea, created a question of credibility for County Court to resolve (see, People v. Torra, 191 A.D.2d 738, 739, 594 N.Y.S.2d 419, lv. denied 81 N.Y.2d 1021, 600 N.Y.S.2d 209, 616 N.E.2d 866).   In resolving this question, County Court aptly noted that defendant's testimony, in addition to often being ambiguous, suffered from a “convenient loss of memory and [was] inartfully contrived”.   Considering the entire record, there is abundant support for the conclusion that defendant's plea was knowing and voluntary and, therefore, there is no basis upon which to disturb County Court's denial of defendant's motion to withdraw the plea.

ORDERED that the judgment is affirmed.

CREW III, J.

CARDONA, P.J., CARPINELLO, MUGGLIN and ROSE, JJ., concur.