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

385
KA 14-01745
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. LORRAINE, DEFENDANT-APPELLANT.


KATHLEEN A. KUGLER, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered August 13, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted criminal possession of a controlled
substance in the fourth degree (Penal Law §§ 110.00, 220.09 [1]),
defendant contends that County Court abused its discretion in denying
his motion to withdraw his plea at sentencing because his plea was not
knowingly, voluntarily and intelligently entered. According to
defendant, he was under the misunderstanding at the time of the plea
that, if he pleaded guilty, other charges pending against him would be
dismissed, and the court did not conduct a sufficient inquiry into his
misunderstanding to enable it to make an informed decision to deny the
motion. Although defendant’s contention survives his valid waiver of
the right to appeal (see People v Jackson, 126 AD3d 1512, 1512, lv
denied 25 NY3d 1202), we nevertheless conclude that it lacks merit.
It is well settled that “[p]ermission to withdraw a guilty plea rests
solely within the court’s discretion . . . , and refusal to permit
withdrawal does not constitute an abuse of that discretion unless
there is some evidence of innocence, fraud, or mistake in [the
inducement of] the plea” (People v Robertson, 255 AD2d 968, 968, lv
denied 92 NY2d 1053; see People v Zimmerman, 100 AD3d 1360, 1361, lv
denied 20 NY3d 1015). There is no such evidence on this record.
Where, as here, “a sentencing court keeps the promises it made at the
time it accepted a plea of guilty, a defendant should not be permitted
to withdraw his plea on the sole ground that he misinterpreted the
agreement. Compliance with a plea bargain is to be tested against an
                                 -2-                           385
                                                         KA 14-01745

objective reading of the bargain, and not against a defendant’s
subjective interpretation thereof” (People v Cataldo, 39 NY2d 578,
580; see People v Guillory, 81 AD3d 1394, 1395, lv denied 16 NY3d
895). Inasmuch as “the plea bargain here is susceptible to but one
interpretation,” we conclude that the court did not abuse its
discretion in denying defendant’s motion to withdraw his plea
(Cataldo, 39 NY2d at 580). Furthermore, defendant was “afforded [a]
reasonable opportunity to present his contentions,” and the record
establishes that the court made “an informed determination” in denying
the motion (People v Tinsley, 35 NY2d 926, 927; see People v Alston,
23 AD3d 1041, 1042, lv denied 6 NY3d 752).

     Finally, we conclude that the valid waiver of the right to appeal
encompasses defendant’s challenge to the severity of the bargained-for
sentence (see People v Lopez, 6 NY3d 248, 256; see generally People v
Lococo, 92 NY2d 825, 827; People v Hidalgo, 91 NY2d 733, 737).


                                                Frances E. Cafarell




Entered:   April 29, 2016
                                                Clerk of the Court
