        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

986
KA 12-01527
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MATTHEW V. NOCE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered July 25, 2012. The judgment convicted
defendant, upon his plea of guilty, of assault in the first degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Monroe County Court for further
proceedings in accordance with the following memorandum: On appeal
from a judgment convicting him upon his plea of guilty of assault in
the first degree (Penal Law § 120.10 [1]), defendant contends that
County Court abused its discretion in denying his motion to withdraw
his plea without a hearing. We agree.

     This case arises from an incident in which defendant unlawfully
entered his ex-girlfriend’s home, found a man sleeping in her bed, and
repeatedly struck him about the head with a blunt object. During the
plea colloquy, it was noted that defendant “had some kind of brain
surgery” in the weeks before the assault. The court asked defendant
if he had discussed with defense counsel whether the recent brain
surgery “would raise any issue,” and defendant responded, “I’m told
no.” Defendant thereafter submitted a sentencing memorandum that
included a report from a neurologist who stated that, only 22 days
before the assault, defendant underwent resection of a portion of his
brain and was prescribed multiple medications.

     Before sentencing, defendant discharged his counsel and moved
through new counsel to withdraw his guilty plea. In his affidavit in
support of the motion, defendant stated that he had wanted to go to
trial and assert a psychiatric defense instead of pleading guilty, but
his prior defense attorney had falsely told him that such a defense
was unavailable because his neurosurgeon had refused to testify at
trial. Defendant also submitted an affidavit from his neurosurgeon,
who stated that he never spoke to defendant’s prior attorney and never
                                 -2-                           986
                                                         KA 12-01527

refused to testify. In a responding affirmation, the prosecutor
stated that, upon information and belief, defendant’s prior attorney
did not tell defendant that his neurosurgeon had refused to testify.

     It is well settled that the determination whether to grant a
motion to withdraw a guilty plea is within the court’s discretion and
that a defendant is entitled to an evidentiary hearing only in rare
instances (see People v Manor, 27 NY3d 1012, 1013; People v Henderson,
137 AD3d 1670, 1670-1671). The denial of such a motion is not an
abuse of discretion “unless there is some evidence of innocence,
fraud, or mistake in inducing the plea” (Henderson, 137 AD3d at 1671
[internal quotation marks omitted]). Here, if the allegations in
defendant’s affidavit are true, then defendant’s plea was not
voluntarily and intelligently entered inasmuch as it was based upon a
mistaken belief that a psychiatric defense was unavailable (see id.).
We therefore conclude that defendant’s motion was not “patently
insufficient on its face” (People v Mitchell, 21 NY3d 964, 967), and
that the court abused its discretion in denying the motion without an
evidentiary hearing (see Henderson, 137 AD3d at 1671). Thus, we hold
the case, reserve decision, and remit the matter to County Court for a
hearing on defendant’s motion.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
