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

146
KA 12-02153
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY T. HENDERSON, JR., ALSO KNOWN AS BUTTER,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered September 26, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second 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 burglary in
the second degree (Penal Law § 140.25 [2]), defendant contends that
County Court erred in summarily denying his pro se motion to withdraw
his plea. We agree. In support of his motion, which was made at
sentencing, defendant repeatedly asserted that his attorney advised
him before he pleaded guilty that he could withdraw his plea at any
time prior to sentencing. Although defense counsel responded that he
advised defendant to plead guilty in order to take advantage of what
he believed to be an advantageous plea offer, he did not deny that he
told defendant that his plea could be withdrawn. The court denied the
motion without a hearing and imposed the promised sentence.

     It is well settled that permission to withdraw a guilty plea
rests largely within the court’s discretion (see People v Brown, 14
NY3d 113, 116), 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
Hamilton, 122 AD3d 1439, 1439; see People v Zimmerman, 100 AD3d 1360,
1362, lv denied 20 NY3d 1015). “Only in the rare instance will a
defendant be entitled to an evidentiary hearing” (People v Tinsley, 35
NY2d 926, 927). Here, if defendant was advised by counsel that he
could withdraw his plea prior to sentencing, as he alleged and counsel
did not deny, then his plea was not voluntarily and intelligently
entered because it was based at least in part upon his mistaken
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                                                         KA 12-02153

understanding of the law. Under the circumstances, we conclude that
defendant’s motion was not “patently insufficient on its face” to
permit the court to deny it summarily (People v Mitchell, 21 NY3d 964,
967; see generally People v Smith, 122 AD3d 1300, 1301-1302, lv denied
25 NY3d 1172).

     We note that our decision in People v Montgomery (63 AD3d 1635,
lv denied 13 NY3d 798) is not to the contrary. The defendant in that
case likewise moved to withdraw his plea, contending that his attorney
told him that he retained the right to withdraw his plea at any time
prior to sentencing. Although we held therein that the court properly
denied the motion without a hearing, the record on appeal shows that
the parties stipulated that, if called as a witness, the defense
attorney would testify that he never told defendant that he could
withdraw his plea prior to sentencing. We wrote that “[t]he issue
whether defense counsel made the alleged statement presented a
credibility issue that the court was entitled to resolve against
defendant after affording him a reasonable opportunity to be heard”
(id. at 1636). Here, there is no such stipulation, and we therefore
do not know what defense counsel would have said if he had been asked
whether he advised defendant that he could withdraw his plea. We thus
conclude that a hearing is required, and we hold the case, reserve
decision and remit the matter to County Court for that purpose.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
