PEOPLE v. FONSECA

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

The PEOPLE of the State of New York, Respondent, v. Carlos FONSECA, Defendant-Appellant.

Decided: June 26, 2001

NARDELLI, J.P., WILLIAMS, TOM, MAZZARELLI and MARLOW, JJ. Tami J. Aisenson, for Respondents. Natalie Rea, for Defendant-Appellant.

Judgment, Supreme Court, New York County (John Walsh, J. at plea;  Robert Sackett, J. at sentence), rendered October 20, 1998, convicting defendant of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant's application to withdraw his guilty plea after defendant was afforded ample opportunity to present his claims (People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332).   Defendant did not expand upon his conclusory claim of innocence, and his claim that he pleaded guilty because he was “scared and nervous” about his sentencing exposure if convicted after trial would not require withdrawal of the plea.   The court properly concluded that defendant's challenges to the plea were contradicted by his plea allocution and that the plea was voluntary.