                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    106269
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

JAMES McKINNEY,
                    Appellant.
________________________________


Calendar Date:    October 17, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

                              __________


     G. Scott Walling, Schenectady, for appellant.

      J. Anthony Jordan, District Attorney, Fort Edward (Brandon
P. Rathbun of counsel), for respondent.

                              __________


McCarthy, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered August 29, 2013, convicting
defendant upon his plea of guilty of the crime of attempted
burglary in the second degree.

      In connection with the burglary of a residence, defendant
was indicted on charges of burglary in the third degree,
conspiracy in the fourth degree, grand larceny in the fourth
degree and criminal mischief in the fourth degree. At
arraignment, the People moved to amend the first two counts of
the indictment (see CPL 200.70). County Court granted the
motion, amending the first count to charge burglary in the second
degree and amending the second count so the narrative portion
listed burglary in the second degree as the crime that defendant
                              -2-                106269

allegedly conspired to commit. Pursuant to a plea agreement,
defendant pleaded guilty to attempted burglary in the second
degree in satisfaction of the indictment. At sentencing,
defendant moved to withdraw his plea. The court denied that
motion and imposed the agreed-upon sentence of 3½ years in
prison, to be followed by five years of postrelease supervision.
Defendant appeals.

      By pleading guilty, defendant forfeited his argument that
County Court erred in amending the indictment, which did not
create a jurisdictional defect (see People v Torres, 117 AD3d
1497, 1498 [2014], lvs denied 24 NY3d 963, 965 [2014]; People v
Stokely, 49 AD3d 966, 968 [2008]; People v Anson, 272 AD2d 639,
640 [2000]; People v Priester, 255 AD2d 833, 834 [1998]; see also
People v Hansen, 95 NY2d 227, 231-232 [2000]; People v Beattie,
80 NY2d 840, 842 [1992]).

      County Court did not err in denying defendant's motion to
withdraw his plea. Trial courts generally have broad discretion
when considering motions to withdraw a plea, and such motions
generally will not be granted absent evidence of fraud, innocence
or mistake in the inducement (see People v Mitchell, 73 AD3d
1346, 1347 [2010], lv denied 15 NY3d 922 [2010]). Hearings are
rarely granted on such motions, as they are generally only
necessary where the record raises a legitimate question about the
voluntariness of the plea (see People v Brown, 14 NY3d 113, 116
[2010]). Nothing in the record here indicates involuntariness.
While defendant now argues that the court should have assigned
him new counsel to submit a written motion, defendant did not
make allegations against his counsel, such as coercion or
ineffective assistance, as a ground to withdraw the plea (compare
People v Williams, 35 AD3d 1085, 1086-1087 [2006]). Defense
counsel informed the court of defendant's desire to move to
withdraw his plea and the grounds therefor, with no indication
that counsel was unable to properly represent him. Defendant did
not speak up at that time, nor did he make a statement to the
court when given the opportunity. Inasmuch as the stated ground
– that defendant had reviewed additional documents and now
believed that the People would be unable to prove their case
against him – was not a legitimate basis for withdrawal of a
plea, County Court did not err in denying the motion without a
                              -3-                  106269

hearing (see People v King, 114 AD2d 650, 652 [1985], lv denied
67 NY2d 653 [1986]; compare People v Williams, 35 AD3d at 1086-
1087).

     Stein, J.P., Garry, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
