77 A.D.3d 986
N.Y. App. Div.
2010

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v CRAIG R. JOHNSON JR., Appellant.

Appellate Division of the Supreme Court of New York, Third Department

73 A.D.3d 986 | 908 N.Y.S.2d 276

Judgment rendered January 16, 2009

Rose, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered January 16, 2009, convicting defendant upon his plea of guilty of the crimes of murder in the second degree and arson in the second degree.

In satisfaction of a three-count indictment and a pending probation violation petition, defendant pleaded guilty to murder in the second degree and arson in the second degree, and further waived his right to appeal. Defendant‘s subsequent motion to withdraw his plea was denied without a hearing. County Court then sentenced him, as a second felony offender, to the agreed-upon sentence of an aggregate prison term of 20 years to life and postrelease supervision of five years.

Defendant now appeals, arguing that his guilty plea was not knowingly, voluntarily and intelligently entered. This challenge survives his appeal waiver and is preserved due to his motion to withdraw the plea (see People v Ortiz, 69 AD3d 966, 967 [2010]; People v First, 62 AD3d 1043, 1044 [2009], lv denied 12 NY3d 915 [2009]). Nevertheless, we affirm. “Whether to allow withdrawal of a guilty plea is left to the sound discretion of County Court, and will generally not be permitted absent ‘some evidence of innocence, fraud or mistake in its inducement’ ” (People v Mitchell, 73 AD3d 1346, 1347 [2010], quoting People v Carmona, 66 AD3d 1240, 1241 [2009], lv denied 14 NY3d 799 [2010]). Here, defendant expressed satisfaction with defense counsel during the plea colloquy, and the allocuted facts gave no reason to believe that any defenses were applicable. He nevertheless states that he relayed a significantly altered version of events to his attorney prior to pleading guilty—a version in which, it should be noted, defendant still admitted to committing the acts in question—but that counsel mistakenly advised that he had no defenses. Defendant‘s argument amounts to “an assertion that counsel provided erroneous off-the-record advice,” which must be raised in an appropriate CPL 440.10 motion (People v Henderson, 130 AD2d 789, 790 [1987]; see People v Ramos, 63 NY2d 640, 642-643 [1984]; People v Bagley, 298 AD2d 616, 617 [2002], lv denied 99 NY2d 580 [2003]). Lastly, defendant acknowledged that he was not under the influence of any medication at the time he entered his guilty plea, he had discussed the plea agreement with counsel and understood its terms, and he offered no evidence to substantiate the claim that his mental state prevented him from entering a voluntary guilty plea (see People v Ashley, 71 AD3d 1286, 1287-1288 [2010]; People v Williams, 35 AD3d 971, 972 [2006], lv denied 8 NY3d 928 [2007]). Accordingly, County Court properly denied defendant‘s motion to withdraw his guilty plea without a hearing.

Cardona, P.J., Peters, Malone Jr. and Stein, JJ., concur.

Ordered that the judgment is affirmed.