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

744
KA 13-00713
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAYMOND L. LEACH, JR., ALSO KNOWN AS RAYMOND L.
LEACH, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered April 11, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.

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

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of criminal contempt in the first degree (Penal Law
§ 215.51 [b] [vi]), defendant contends that his plea was not
knowingly, intelligently, and voluntarily entered and, thus, that
County Court erred in denying his motion to withdraw his plea. 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 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).
Here, we perceive no abuse of discretion.

     We conclude that “[d]efendant’s contention that he was pressured
into accepting the plea is belied by his statements during the plea
proceedings” (People v Garner, 86 AD3d 955, 955; see generally
Zimmerman, 100 AD3d at 1361-1362). We further conclude that, “[t]o
the extent that defendant contends that defense counsel was
ineffective because he coerced defendant into pleading guilty, that
contention is [also] belied by defendant’s statement during the plea
colloquy that the plea was not the result of any . . . coercion”
(People v Campbell, 62 AD3d 1265, 1266, lv denied 13 NY3d 795).
                                 -2-                           744
                                                         KA 13-00713

     Defendant contends that his guilty plea was not knowing,
intelligent and voluntary because the court failed to advise him of
the potential periods of incarceration for an enhanced sentence based
upon a postplea arrest, but he failed to preserve that contention for
our review inasmuch as he failed to move to withdraw the plea or to
vacate the judgment of conviction on that ground (see People v Halsey,
108 AD3d 1123, 1124). We decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]).

     Contrary to defendant’s contention, “[a]lthough . . . [his]
initial statements . . . during the factual allocution may have
negated [an] essential element of [the crime of criminal contempt in
the first degree], his further statements removed any doubt” that he
had committed that crime (People v Trinidad, 23 AD3d 1060, 1061, lv
denied 6 NY3d 760; see People v Thomas, 56 AD3d 1240, 1240, lv denied
12 NY3d 763).

     We agree with defendant that his valid waiver of the right to
appeal does not encompass the challenge to the severity of the
sentence inasmuch as the court “ ‘failed to advise defendant of the
potential periods of incarceration that could be imposed, including
the potential periods of incarceration for an enhanced sentence . .
. , before he waived his right to appeal’ ” (People v Scott, 101 AD3d
1773, 1774, lv denied 21 NY3d 1019; see People v Huggins, 45 AD3d
1380, 1380-1381, lv denied 9 NY3d 1006; cf. People v Jackson, 34 AD3d
1318, 1319, lv denied 8 NY3d 923). We nevertheless conclude that the
sentence is not unduly harsh or severe.




Entered:   July 11, 2014                       Frances E. Cafarell
                                               Clerk of the Court
