Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Michael RUSSELL, Appellant.

Decided: December 30, 2010

Before:  MERCURE, J.P., PETERS, ROSE, MALONE JR. and GARRY, JJ. Craig Meyerson, Latham, for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 2, 2009, convicting defendant upon his plea of guilty of the crime of rape in the third degree.

In satisfaction of a seven-count indictment, defendant pleaded guilty to one count of rape in the third degree, waived his right to appeal and was sentenced to an agreed-upon term of four years in prison followed by 10 years of postrelease supervision.   At sentencing, defendant made a pro se motion to withdraw his plea contending, among other things, that he failed to comprehend the underlying plea agreement.   County Court denied that motion without a hearing and this appeal ensued.

 We affirm.  “The decision to permit withdrawal of a guilty plea is a matter within the trial court's sound discretion, and a hearing is required only where the record presents a genuine question of fact as to its voluntariness” (People v. Shovah, 67 A.D.3d 1257, 1257, 889 N.Y.S.2d 717 [2009], lv. denied 14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110 [2010] [internal quotation marks and citations omitted];  see People v. Atkinson, 58 A.D.3d 943, 871 N.Y.S.2d 479 [2009];  People v. Singletary, 51 A.D.3d 1334, 858 N.Y.S.2d 483 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ).   Further, a guilty plea generally may not be withdrawn “absent some evidence or claim of innocence, fraud or mistake in its inducement” (People v. Davis, 250 A.D.2d 939, 940, 672 N.Y.S.2d 945 [1998];  see People v. Sepulveda, 65 A.D.3d 754, 755, 883 N.Y.S.2d 733 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010];  People v. Rosseter, 62 A.D.3d 1093, 1095, 878 N.Y.S.2d 512 [2009] ).

 Defendant's present claim—that his low IQ, mental health issues and certain medications precluded him from understanding the ramifications of his plea bargain—is belied by a review of the plea colloquy, wherein defendant, in response to County Court's extensive questioning, indicated that he understood the nature of the plea, had discussed the viability of potential defenses and had sufficient time to confer with counsel and was satisfied with his representation.   Additionally, defendant denied having any physical, mental or emotional issue that interfered with his decision-making ability and affirmatively indicated that he was thinking clearly, understood what he was doing and was accepting the plea because he was in fact guilty.   Finally, defendant's conclusory assertions regarding his health issues, which were “unsupported by any medical proof, ․ did not raise a sufficient question of fact regarding the voluntariness of his plea so as to require an evidentiary hearing” (People v. Williams, 35 A.D.3d 971, 972, 825 N.Y.S.2d 322 [2006], lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007];  compare People v. D'Adamo, 281 A.D.2d 751, 753, 721 N.Y.S.2d 706 [2001] ).   Under these circumstances, we cannot say that County Court abused its discretion in denying defendant's motion to withdraw his plea (see People v. First, 62 A.D.3d 1043, 1044, 880 N.Y.S.2d 195 [2009], lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 [2009];  People v. Atkinson, 58 A.D.3d at 944, 871 N.Y.S.2d 479;  People v. Quinones, 51 A.D.3d 1226, 1228, 857 N.Y.S.2d 372 [2008], lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008];  People v. Dalton, 47 A.D.3d 1010, 1011, 850 N.Y.S.2d 236 [2008] ).

ORDERED that the judgment is affirmed.



Copied to clipboard