PEOPLE v. ELMORE

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

The PEOPLE of the State of New York, Respondent, v. Isaac F. ELMORE, Defendant-Appellant.  (Appeal No. 2.)

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Robert P. Rickert of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Robert E. Rust, Jr., of Counsel), for Respondent.

On appeal from a judgment convicting him, upon his plea of guilty, of attempted burglary in the first degree (Penal Law §§ 110.00, 140.30[1] ), defendant contends that County Court erred in denying his motion to withdraw his plea.   We conclude on the record before us that the court did not abuse its discretion in denying the motion where, as here, there is no evidence of “innocence, fraud, or mistake in inducing the plea” (People v. Robertson, 255 A.D.2d 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188).   The record does not support the contention of defendant that the court erroneously informed him that he would be eligible for shock incarceration, and defendant's general assertion of innocence, also unsupported by the record, does not entitle defendant to withdraw his plea (see People v. Chestnut, 188 A.D.2d 480, 481, 590 N.Y.S.2d 906, lv. denied 81 N.Y.2d 883, 597 N.Y.S.2d 944, 613 N.E.2d 976).

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

MEMORANDUM: