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

607
KA 13-01885
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PETER DAVIS, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (MEGAN P. DADD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered September 10, 2013. The judgment convicted
defendant, upon his plea of guilty, of driving while ability impaired
by drugs.

     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 driving while ability impaired by drugs
(Vehicle and Traffic Law § 1192 [4]). Contrary to defendant’s
contention, the record establishes that he validly waived his right to
appeal both orally and in writing before pleading guilty. The record
establishes that County Court conducted “ ‘an adequate colloquy to
ensure that the waiver of the right to appeal was a knowing and
voluntary choice’ ” (People v Glasper, 46 AD3d 1401, 1401, lv denied
10 NY3d 863; see People v Estevez-Santos, 114 AD3d 1174, 1175, lv
denied 23 NY3d 1019), and that “defendant understood that the right to
appeal is separate and distinct from those rights automatically
forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256).

     Defendant contends that the court abused its discretion in
denying his motion to withdraw his plea of guilty, which was premised
on his allegations that he was under the influence of medication that
impacted his ability to understand the plea proceedings and that,
therefore, the plea was not knowing, intelligent and voluntary. That
contention survives defendant’s valid waiver of the right to appeal
(see People v Lawrence, 118 AD3d 1501, 1501, lv denied 24 NY3d 1220;
People v Torres, 117 AD3d 1497, 1498, lv denied 24 NY3d 965), and he
preserved that contention for our review by moving to withdraw the
plea (see People v Lopez, 71 NY2d 662, 665). We nevertheless reject
defendant’s contention. “Permission to withdraw a guilty plea rests
solely within the court’s discretion . . . , and refusal to permit
                                 -2-                           607
                                                         KA 13-01885

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).
Inasmuch as defendant tendered no such evidence on his motion, we
perceive no abuse of discretion.

      We reject defendant’s further contention that the court should
have conducted a hearing on his motion. Where, as here, “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” (People v Brown, 14 NY3d 113, 116 [internal
quotation marks omitted]; see People v Mitchell, 21 NY3d 964, 966).
“Only in the rare instance will a defendant be entitled to an
evidentiary hearing” (People v Tinsley, 35 NY2d 926, 927). Here, we
conclude that defendant was afforded a reasonable opportunity to
present his contention that, because of the influence of his
medication, his plea was not knowing, intelligent, and voluntary (see
People v Walker, 114 AD3d 1257, 1258, lv denied 23 NY3d 1044). We
note, however, that defendant failed to substantiate his contention
inasmuch as he submitted only his self-serving statements and his
attorney’s assertions made upon information and belief (see People v
Ashley, 71 AD3d 1286, 1287, affd 16 NY3d 725; People v Watkins, 107
AD3d 1416, 1417, lv denied 22 NY3d 959). Furthermore, “[d]efendant’s
contention is belied by the record of the plea proceeding, which
establishes that his factual allocution was lucid and detailed and
that defendant understood both the nature of the proceedings and that
he was waiving various rights” (People v Hayes, 39 AD3d 1173, 1175, lv
denied 9 NY3d 923). In light of those circumstances, we cannot
conclude that this case is one of those “rare instance[s]” in which
defendant was entitled to a hearing on his motion (Tinsley, 35 NY2d at
927).

     Finally, defendant’s valid waiver of the right to appeal
encompasses his further contention that the sentence is unduly harsh
and severe (see People v Rodman, 104 AD3d 1186, 1188, lv denied 22
NY3d 1202; see generally Lopez, 6 NY3d at 255-256).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
