THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V
MEMORANDUM AND ORDER
ZACHARY J. BARRETT, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF
COUNSEL), FOR
DEFENDANT-APPELLANT.
KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT (J. THOMAS FUOCO
OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Allegany County Court (Thomas
P. Brown, J.), rendered March 2, 2016. The judgment convicted defendant, upon
his plea of guilty, of grand larceny in the fourth degree. It is hereby ORDERED
that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of grand larceny in the fourth degree (Penal Law §
155.30 [4]). Defendant failed to preserve for our review his challenge to the
factual sufficiency of the plea allocution inasmuch as his motion to withdraw
his plea was made on grounds different from those advanced on appeal (see
People v Gibson, 140 AD3d 1786, 1787, lv denied 28 NY3d 1072; People v Green,
132 AD3d 1268, 1268-1269, lv denied 27 NY3d 1069, reconsideration denied 28
NY3d 930). We conclude that this case does not fall within the rare exception
to the preservation requirement because defendant did not negate an element of
the pleaded-to offense during the colloquy or otherwise cast significant doubt
on his guilt or call into question the voluntariness of the plea (see People v
Lopez, 71 NY2d 662, 666). In any event, defendant’s contention is without merit
(see People v Madden, 148 AD3d 1576, 1578, lv denied 29 NY3d 1034). Contrary to
defendant’s further contention, his “ ‘yes’ and ‘no’ answers during the plea
colloqu[y] do not invalidate his guilty plea[]” (People v Russell, 133 AD3d
1199, 1199, lv denied 26 NY3d 1149). Defendant also contends that the plea was
not knowingly, intelligently and voluntarily entered because County Court
misinformed him of the minimum sentence to which he was exposed. Defendant’s contention
is not preserved for our review inasmuch as he did not move to withdraw the
plea or to vacate the judgment of conviction on that ground (see People v
Morrison, 78 AD3d 1615, 1616, lv denied 16 NY3d 834; see also People v Rossborough,
105 AD3d 1332, 1333, lv denied 21 NY3d 1045), nor did the court expressly
decide the question raised on appeal (see CPL 470.05 [2]; People v Jackson, 29
NY3d 18, 23). Contrary to defendant’s contention, the court did not abuse its discretion
in denying his motion to withdraw his plea. Defendant made his motion on the
ground that he had entered the guilty plea without considering or understanding
the consequences thereof because he was emotionally distraught by the prospect
of continued incarceration and would be released from custody pending
sentencing, and because he had insufficient time to discuss the plea with defense counsel.
“ ‘The determination whether to permit a defendant to withdraw a guilty plea rests
within the sound discretion of the court’ . . . , and ‘a court does not abuse
its discretion in denying a motion to withdraw a guilty plea where[, as here,]
the defendant’s allegations in support of the motion are belied by the
defendant’s statements during the plea proceeding’ ” (People v Lewicki, 118
AD3d 1328, 1329, lv denied 23 NY3d 1064). Finally, defendant contends that the
court erred in failing to conduct an evidentiary hearing before denying his
further motion to withdraw his plea, which was made at sentencing on the ground
that the prosecutor had a conflict of interest. We reject that contention. Here,
defendant was “afforded [a] reasonable opportunity to present his contentions,”
and the court made “an informed determination” in denying the motion on the
merits (People v Tinsley, 35 NY2d 926, 927). The record establishes that the
prosecutor briefly represented defendant in an unrelated criminal matter
several years before the instant action, and there is no indication of “actual
prejudice arising from a demonstrated conflict of interest or a substantial
risk of an abuse of confidence” (People v Martin, 2 AD3d 1336, 1337, lv denied
1 NY3d 630 [internal quotation marks omitted]; see People v Tyler, 209 AD2d
1028, 1029, lv denied 85 NY2d 915).
