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

555
KA 15-00638
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL NEWSOME, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


ROBERT TUCKER, PALMYRA, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Daniel G.
Barrett, J.), rendered January 8, 2015. The judgment convicted
defendant, upon his plea of guilty, of assault in the first degree
(two counts), assault in the second degree and criminal obstruction of
breathing or blood circulation.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of, inter alia, two counts of
assault in the first degree (Penal Law § 120.10 [1], [2]). In appeal
No. 2, defendant appeals from a judgment convicting him upon his plea
of guilty of two counts of criminal contempt in the first degree
(§ 215.51 [b] [ii], [iv]).

     We reject defendant’s contention in each appeal that County Court
erred in denying his motion to withdraw his guilty plea without a
hearing. “When a defendant moves to withdraw a guilty plea, the
nature and extent of the fact-finding inquiry ‘rest[s] largely in the
discretion of the Judge to whom the motion is made’ and a hearing will
be granted only in rare circumstances” (People v Brown, 14 NY3d 113,
116, quoting People v Tinsley, 35 NY2d 926, 927; see People v Manor,
___ NY3d ___, ___ [May 3, 2016]; People v Green, 122 AD3d 1342, 1343).
Here, the record establishes that, with respect to both appeals,
“[d]efendant admitted each element of the offense[s] during his plea
allocution and did not claim either that he was innocent or that he
had been coerced” (People v Sparcino, 78 AD3d 1508, 1509, lv denied 16
NY3d 746). Defendant’s postplea protestations of innocence,
misunderstanding, and “pressure” presented credibility issues that the
court could properly resolve without a hearing (see People v Dixon, 29
NY2d 55, 56; Sparcino, 78 AD3d at 1509; see also People v Dickerson,
                                 -2-                           555
                                                         KA 15-00638

66 AD3d 1371, 1372, lv denied 13 NY3d 859).

     We likewise reject defendant’s contention in each appeal that the
court erred in sentencing him as a second felony offender without
first conducting a hearing. In order to obtain a hearing regarding a
predicate felony conviction, “a defendant must do more than make
conclusory allegations . . . He must support his allegations with
facts” (People v Konstantinides, 14 NY3d 1, 15; see People v Brown, 74
AD3d 1748, 1750, lv denied 15 NY3d 802). Defendant’s unsubstantiated
assertion regarding the alleged “incorrectness” of the sentencing date
for his predicate felony conviction is not an allegation supported by
facts sufficient to entitle him to a hearing (see Brown, 74 AD3d at
1750).

     Defendant’s contention in each appeal that his guilty plea was
not sufficiently allocuted is without merit. “There is no requirement
that defendant personally recite the facts underlying the crime[s] to
which he pleaded guilty” (People v Singletary, 307 AD2d 779, 779, lv
denied 100 NY2d 599; see People v Brown, 305 AD2d 1068, 1069, lv
denied 100 NY2d 579; see also People v Seeber, 4 NY3d 780, 781).
Here, “[t]he record establishes that defendant admitted the essential
elements of the . . . count[s] of the indictment[s] [to which he
pleaded guilty,] and thus his factual allocution [in each appeal] is
legally sufficient” (People v Dorrah, 50 AD3d 1619, 1619, lv denied 11
NY3d 736 [internal quotation marks omitted]; see People v Emm, 23 AD3d
983, 984, lv denied 6 NY3d 775).

     Finally, we reject defendant’s contention in each appeal that the
sentence is unduly harsh and severe.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
