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

420
KA 12-00716
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

GREGORY WATKINS, DEFENDANT-APPELLANT.


ROBERT A. DINIERI, CLYDE, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (CHRISTOPHER BOKELMAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Daniel G.
Barrett, J.), rendered January 26, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the first degree (two
counts), assault in the second degree and assault in the third 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 two counts of burglary in the first degree (Penal
Law § 140.30 [2]), and one count each of assault in the second degree (§
120.05 [1]) and assault in the third degree (§ 120.00 [1]). Contrary to
defendant’s contention, County Court did not abuse its discretion in
denying his motion to withdraw the plea (see People v Wolf, 88 AD3d
1266, 1266-1267, lv denied 18 NY3d 863; People v Tracy, 77 AD3d 1402,
1403, lv denied 16 NY3d 746; see generally People v Dozier, 74 AD3d
1808, 1808, lv denied 15 NY3d 804). “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 Robertson, 255 AD2d 968, 968, lv denied 92 NY2d 1053;
see People v Zimmerman, 100 AD3d 1360, 1361, lv denied 20 NY3d 1015).
Defendant contended in support of his motion that he was induced to
plead guilty based on the originally scheduled sentencing date, which
allegedly afforded him time to post bail prior to sentencing, and that
the court thereafter advanced the date of sentencing such that he was
unable to post bail. Inasmuch as the date on which sentencing was to
occur was not part of the plea agreement, we conclude that the court did
not abuse its discretion in denying defendant’s motion to withdraw his
plea on the grounds of duress, misrepresentation or fraud (see CPL
220.60 [3]; People v Todd, 276 AD2d 913, 914). We reject defendant’s
further contention that, when the court advanced the date for
sentencing, it thereby imposed an enhanced sentence or added a condition
                                 -2-                           420
                                                         KA 12-00716

to the plea agreement such that defendant should have been allowed to
withdraw his plea (cf. People v Gordon, 53 AD3d 793, 794; People v
Armstead, 52 AD3d 966, 967-968).

     The record does not support defendant’s further contention that the
court abused its discretion in denying his motion to withdraw the plea
on the ground that the plea was not knowing, voluntary and intelligent
in view of his having been on medication at the time of the plea.
Defendant failed to submit his own affidavit or any medical evidence to
substantiate that contention (see People v Ashley, 71 AD3d 1286, 1287,
affd 16 NY3d 725; Wolf, 88 AD3d at 1266-1267), and in any event it “is
belied by the record of the plea proceeding” (People v Hayes, 39 AD3d
1173, 1175, lv denied 9 NY3d 923), which establishes that defendant
understood the nature of the proceedings (see Wolf, 88 AD3d at 1267).
“Furthermore, to the extent that the contention of defendant that he
received ineffective assistance of counsel survives his plea of guilty”
(People v Ellis, 73 AD3d 1433, 1434, lv denied 15 NY3d 851), we conclude
that defendant’s contention lacks merit (see People v Culver, 94 AD3d
1427, 1427-1428, lv denied 19 NY3d 1025).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
