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

194
KA 10-00217
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

PRISCILLA GUMPTON, DEFENDANT-APPELLANT.


KATHLEEN E. CASEY, BARKER, 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 (Matthew J.
Murphy, III, J.), rendered August 26, 2009. The judgment convicted
defendant, upon her plea of guilty, of grand larceny in the third
degree, grand larceny in the fourth degree (two counts) and criminal
possession of stolen property in the third degree.

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

     Memorandum: On appeal from a judgment convicting her upon her
plea of guilty of, inter alia, two counts of grand larceny in the
fourth degree (Penal Law § 155.30 [1]), defendant contends that County
Court abused its discretion in denying her motion to withdraw the
guilty plea. We reject that contention (see generally People v
Dozier, 74 AD3d 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, lv
denied 92 NY2d 1053). Although in support of the motion defense
counsel attacked the strength of the People’s proof and contended that
the case was “eminently triable,” it is well settled that “ ‘defendant
[was] not entitled to withdraw [her] plea merely because [s]he
discover[ed] . . . that [her] calculus misapprehended the quality of
the State’s case’ ” (People v Jones, 44 NY2d 76, 81, cert denied 439
US 846). In any event, any “assertion of innocence by defendant in
support of the motion is belied by [her] admission of guilt during the
plea colloquy” (People v Conde, 34 AD3d 1347, 1347).

     To the extent that the contention   of defendant that she was
denied effective assistance of counsel   is not forfeited by the plea
(see People v Santos, 37 AD3d 1141, lv   denied 8 NY3d 950), it is
lacking in merit (see generally People   v Ford, 86 NY2d 397, 404).
                                 -2-                           194
                                                         KA 10-00217

Defendant’s assertion that defense counsel was ineffective is
contradicted by her statements during the plea colloquy (see People v
Harris, 63 AD3d 1653, lv denied 13 NY3d 744). Moreover, we note that
“[d]efense counsel negotiated ‘an advantageous plea and nothing in the
record casts doubt on the apparent effectiveness of counsel’ ” (People
v Gross, 50 AD3d 1577, quoting Ford, 86 NY2d at 404). Defendant
failed to preserve for our review her contention that the People
failed to place on the record at the time of the plea the proof they
intended to offer at trial inasmuch as she did not move to withdraw
her plea or to vacate the judgment of conviction on that ground (see
generally People v Jones, 71 AD3d 1573, 1574, lv denied 15 NY3d 775).
In any event, during the plea proceeding defendant unequivocally
admitted the elements of the crimes to which she pleaded guilty, and
“the court’s inquiry was sufficient to demonstrate that [her] plea was
knowingly, intelligently and voluntarily entered” (People v Pane, 292
AD2d 850, 850, lv denied 98 NY2d 653). Finally, the sentence is not
unduly harsh or severe.




Entered:   February 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
