PEOPLE v. BANDELT

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

The PEOPLE, etc., Respondent, v. James BANDELT, Appellant.

Decided: April 28, 2003

DAVID S. RITTER, J.P., NANCY E. SMITH, SONDRA MILLER and ROBERT W. SCHMIDT, JJ. Greenwald Law Offices, Chester, N.Y. (Marie DuSault of counsel), for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Catherine A. Walsh of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.) rendered March 25, 2002, convicting him of sexual abuse in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

On the day that had been chosen for the selection of a jury in connection with his impending trial, the defendant appeared in the County Court with assigned counsel.   After consulting with his attorney, the defendant decided to plead guilty to one of the several charges in the indictment.   The record establishes that the defendant pleaded guilty because he knew that he faced probable conviction on that charge, as well as on other counts contained in the indictment, in the event he proceeded to trial, and because he wished to take advantage of the People's plea offer in order to avoid the possibility that such a conviction might lead to a sentence consisting of a prison term significantly longer than that promised to him as part of the plea offer.

The defendant's subsequent motion to withdraw his plea (see CPL 220.60[3] ) was based primarily on assertions that he had been unduly pressured to plead guilty as a result of the County Court's refusal to grant his last-minute request for an adjournment of trial, supposedly needed in order to permit the defendant to secure the services of retained counsel.   The County Court had ample justification for denying the last-minute request for an adjournment on the basis that it was a dilatory tactic (see e.g. People v. Tineo, 64 N.Y.2d 531, 536-537, 490 N.Y.S.2d 159, 479 N.E.2d 795;  People v. Sawyer, 57 N.Y.2d 12, 18-19, 453 N.Y.S.2d 418, 438 N.E.2d 1133, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024;  People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393;  People v. White, 291 A.D.2d 250, 251, 738 N.Y.S.2d 23;  People v. Erber, 210 A.D.2d 250, 619 N.Y.S.2d 344;  People v. Gloster, 175 A.D.2d 258, 572 N.Y.S.2d 370;  People v. Branch, 155 A.D.2d 473, 547 N.Y.S.2d 135).

There is no evidence that the defendant, or his attorney, was misled as to the date that was scheduled for trial (cf.  People v. Vandemark, 249 A.D.2d 709, 671 N.Y.S.2d 540).   Also, the defendant acknowledged at a later point in the plea proceeding that he had been afforded a sufficient amount of time to consult with assigned counsel before deciding to plead guilty (see People v. Faison, 270 A.D.2d 717, 705 N.Y.S.2d 420;  People v. Davis, 144 A.D.2d 576, 534 N.Y.S.2d 429).   Under these circumstances, the County Court providently exercised its discretion in denying, without a hearing, the defendant's subsequent motion to withdraw his plea (see People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;  see also People v. Fiumefreddo, 82 N.Y.2d 536, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332;  cf.  People v. McClain, 32 N.Y.2d 697, 343 N.Y.S.2d 601, 296 N.E.2d 454).

The defendant's remaining contentions either are unpreserved for appellate review (see People v. Curry, 301 A.D.2d 658, 753 N.Y.S.2d 878;  People v. Velez, 301 A.D.2d 619, 753 N.Y.S.2d 856;  People v. Skye, 298 A.D.2d 889, 747 N.Y.S.2d 837), or without merit.

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