PEOPLE v. BADGER (2001)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Maurice BADGER, Appellant.

Decided: November 26, 2001

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, SANDRA L. TOWNES and A. GAIL PRUDENTI, JJ.

Andrew C. Fine, New York, N.Y. (Kerry Elgarten of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Mina Malik of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered June 3, 1999, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The determination whether to permit the withdrawal of a plea of guilty rests within the sound discretion of the court (see, People v. Marzocco, 278 A.D.2d 515, 717 N.Y.S.2d 917; People v. McAllister, 248 A.D.2d 641, 669 N.Y.S.2d 952; People v. Flakes, 240 A.D.2d 428, 658 N.Y.S.2d 106). The defendant's unsubstantiated claim of innocence was refuted by an earlier admission of guilt (see, People v. Marzocco, supra; People v. McAllister, supra; People v. Flakes, supra). Thus, the court providently exercised its discretion in denying the defendant's motion to withdraw his plea without a hearing (see, People v. Marzocco, supra; People v. McAllister, supra; People v. Flakes, supra; cf., People v. De Jesus, 199 A.D.2d 529, 606 N.Y.S.2d 255).

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