THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. PRISCILLA GUMPTON DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. PRISCILLA GUMPTON, DEFENDANT-APPELLANT.

KA 10-00217

Decided: February 18, 2011

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT. MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting her upon her plea of guilty of, inter alia, two counts of grand larceny in the fourth degree (Penal Law § 155.30[1] ), defendant contends that County Court abused its discretion in denying her motion to withdraw the guilty plea.   We reject that contention (see generally People v. Dozier, 74 AD3d 1808, lv denied 15 NY3d 804).   “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 the plea” (People v. Robertson, 255 A.D.2d 968, lv denied 92 N.Y.2d 1053).   Although in support of the motion defense counsel attacked the strength of the People's proof and contended that the case was “eminently triable,” it is well settled that “ ‘defendant [was] not entitled to withdraw [her] plea merely because [s]he discover[ed] ․ that [her] calculus misapprehended the quality of the State's case’ “ (People v. Jones, 44 N.Y.2d 76, 81, cert denied 439 U.S. 846).   In any event, any “assertion of innocence by defendant in support of the motion is belied by [her] admission of guilt during the plea colloquy” (People v. Conde, 34 AD3d 1347, 1347).

To the extent that the contention of defendant that she was denied effective assistance of counsel is not forfeited by the plea (see People v. Santos, 37 AD3d 1141, lv denied 8 NY3d 950), it is lacking in merit (see generally People v. Ford, 86 N.Y.2d 397, 404).   Defendant's assertion that defense counsel was ineffective is contradicted by her statements during the plea colloquy (see People v. Harris, 63 AD3d 1653, lv denied 13 NY3d 744).   Moreover, we note that “[d]efense counsel negotiated ‘an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel’ “ (People v. Gross, 50 AD3d 1577, quoting Ford, 86 N.Y.2d at 404).   Defendant failed to preserve for our review her contention that the People failed to place on the record at the time of the plea the proof they intended to offer at trial inasmuch as she did not move to withdraw her plea or to vacate the judgment of conviction on that ground (see generally People v. Jones, 71 AD3d 1573, 1574, lv denied 15 NY3d 775).   In any event, during the plea proceeding defendant unequivocally admitted the elements of the crimes to which she pleaded guilty, and “the court's inquiry was sufficient to demonstrate that [her] plea was knowingly, intelligently and voluntarily entered” (People v. Pane, 292 A.D.2d 850, 850, lv denied 98 N.Y.2d 653).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court