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

472
KA 16-01961
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATHAN J. ROSEKRANS, DEFENDANT-APPELLANT.


ANDREW MANCILLA, NEW YORK CITY, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered May 4, 2016. The judgment convicted defendant,
upon his plea of guilty, of attempted assault in the second 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 attempted assault in the second degree
(Penal Law §§ 110.00, 120.05 [4]). The charges arose from allegations
that defendant injected a mixture of drugs into his girlfriend, who
thereby overdosed. Defendant contends that County Court abused its
discretion in denying his motion to withdraw his plea of guilty, which
was premised largely on his subsequent claim of innocence during his
presentence interview. We reject that contention.

     “ ‘Permission 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 inducing the plea’ ” (People v
Davis, 129 AD3d 1613, 1614, lv denied 26 NY3d 966). Here, defendant
failed to substantiate his own claim of innocence with a sworn
affidavit (see People v Watkins, 107 AD3d 1416, 1417, lv denied 22
NY3d 959). Instead, defendant based his motion on his statement of
innocence during his presentence interview, as supported by his
alleged “prior consistent statement” regarding his innocence in a
police report. We conclude that neither statement constitutes the
requisite “evidence” that would permit us to determine that the court
abused its discretion in denying defendant’s motion (Davis, 129 AD3d
at 1614). It is well settled that a court may deny a motion to
withdraw a plea based on “unsubstantiated assertions of innocence
during the course of the presentence investigation” (People v Gleen,
73 AD3d 1443, 1444, lv denied 15 NY3d 773; see also People v Gomez,
                                 -2-                           472
                                                         KA 16-01961

114 AD3d 701, 702, lv denied 23 NY3d 963; People v Campeau, 300 AD2d
1082, 1082, lv denied 99 NY2d 613). Moreover, the police report does
not support a claim of innocence. Defendant initially gave the police
two conflicting accounts that his girlfriend had injected herself with
drugs but, after he received his Miranda warnings, he confessed to
compounding the mixture of drugs himself and injecting his girlfriend
with them. We cannot conclude that defendant’s initial,
contradictory, and self-serving attempts to evade responsibility for
his criminal actions fall within the category of a prior consistent
statement (see generally People v Buie, 86 NY2d 501, 509-511; People v
Green, 122 AD3d 1342, 1344), especially given that “ ‘nothing in the
plea colloquy casts significant doubt on defendant’s guilt or the
voluntariness of the plea’ ” (People v Brinson, 130 AD3d 1493, 1493,
lv denied 26 NY3d 965). We therefore further conclude that
defendant’s motion was based solely on an unsupported claim of
innocence, and thus that the court did not abuse its discretion in
denying it (see People v Haffiz, 19 NY3d 883, 884-885; see generally
People v Dixon, 29 NY2d 55, 57). Finally, given the nature of the
materials submitted in support of the motion, the court did not abuse
its discretion in denying the motion without conducting a fact-finding
hearing (see People v Manor, 27 NY3d 1012, 1014; Davis, 129 AD3d at
1614).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
