                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 16, 2015                     105906
________________________________

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

EDGAR G. SAUNDERS SR.,
                    Appellant.
________________________________


Calendar Date:    February 11, 2015

Before:    Peters, P.J., Garry, Rose and Lynch, JJ.

                              __________


     Eugene P. Grimmick, Troy, for appellant.

      Joel E. Abelove, District Attorney, Troy (Vincent J.
O'Neill of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of Rensselaer
County (Ceresia, J.), rendered March 28, 2013, convicting
defendant upon his plea of guilty of the crime of attempted
burglary in the second degree.

      In satisfaction of a five-count indictment, defendant
pleaded guilty to a reduced charge of attempted burglary in the
second degree and waived his right to appeal. Thereafter,
pursuant to CPL 220.60 (3), defendant moved to withdraw his plea.
County Court denied the motion without a hearing and sentenced
defendant, in accordance with the plea agreement, to 4½ years in
prison to be followed by five years of postrelease supervision.
                              -2-                105906

Defendant appeals.1

      County Court properly denied defendant's motion without a
hearing. A trial court "has broad discretion in its fact-finding
inquiry on [a] motion [to withdraw a plea] and often a limited
interrogation by the court will suffice"; it is "[o]nly in the
rare instance [that] a defendant [is] entitled to an evidentiary
hearing" (People v Mitchell, 21 NY3d 964, 966-967 [2013]
[internal quotation marks and citation omitted]; see People v
Brown, 14 NY3d 113, 116 [2010]). Moreover, "such motions
generally will not be granted absent evidence of fraud, innocence
or mistake in the inducement" (People v McKinney, 122 AD3d 1083,
1084 [2014]; see People v Wilson, 101 AD3d 1248, 1249 [2012]).

      Defendant argues that his plea to attempted burglary in the
second degree was fraudulently induced because it was based upon
the People's representation that the building was a dwelling,
while subsequent evidence – unsworn letters from defendant's
paramour and another witness indicating that the building
appeared to be vacant and unlivable – raised questions regarding
whether the building was, in fact, suitable for occupancy (see
generally People v DeFreitas, 116 AD3d 1078, 1083 [2014], lv
denied 24 NY3d 960 [2014]). We cannot agree.

      The letters submitted in connection with the motion were
contradicted by defendant's admission during the plea allocution
that he was aware that a person had been living in the building's
third floor apartment, which contained that individual's food and
clothing (see People v Little, 92 AD3d 1036, 1037 [2012]).
Further, in view of defendant's unequivocal statement on the
record that he did not have permission to go into the building,
his additional unexplained comment that he had a key to the
building does not imply that he was licensed to enter and take


     1
        Although the notice of appeal correctly sets forth the
Penal Law statutes pursuant to which defendant was convicted, it
erroneously indicates that the judgment convicted him of the
crime of attempted sexual abuse in the second degree. We
exercise our discretion to overlook the inaccuracy and treat the
notice of appeal as valid (see CPL 460.10).
                              -3-                  105906

what he wanted. Moreover, defendant's claim that, based on the
new evidence, he now believes that the People could not have
proven their case against him does not provide a legitimate basis
for withdrawal of a plea (see People v McKinney, 122 AD3d at
1084; People v Wilson, 101 AD3d at 1249). Finally, to the extent
that defendant raises the issue, nothing in the record casts
doubt on the effectiveness of counsel (see People v Little, 92
AD3d at 1037).

     Peters, P.J., Garry and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
