                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: September 3, 2015                     106179
________________________________

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

RICHARD J. MASSIA,
                    Appellant.
________________________________


Calendar Date:   August 20, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.

                               __________


     G. Scott Walling, Schenectady, for appellant.

      Kristy L. Sprague, District Attorney, Elizabethtown (James
E. Martinieau Jr. of counsel), for respondent.

                               __________


McCarthy, J.

      Appeal from a judgment of the County Court of Essex County
(Meyer, J.), rendered June 6, 2013, convicting defendant upon his
plea of guilty of the crimes of attempted burglary in the third
degree and criminal possession of a forged instrument in the
third degree.

      In satisfaction of three indictments and other pending
charges, defendant pleaded guilty to the reduced charges of
attempted burglary in the third degree and criminal possession of
a forged instrument in the third degree and waived his right to
appeal. Pursuant to the plea agreement, County Court
conditionally committed to sentence defendant, who is a second
felony offender, to a prison term of 1½ to 3 years on the
attempted burglary charge, making no sentencing commitment with
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regard to the forged instrument charge, provided that, among
other things, defendant did not get arrested prior to the date of
sentencing. Thereafter, defendant was arrested and, in a
separate action, pleaded guilty to new charges. County Court
denied defendant's subsequent motion to withdraw his plea and,
finding that it was no longer bound by its sentencing commitment,
sentenced defendant to consecutive prison sentences of 2 to 4
years on the felony attempted burglary conviction and one year in
jail on the misdemeanor forged instrument conviction and also
ordered defendant to pay restitution. Defendant appeals.

      Defendant contends that County Court abused its discretion
in denying his motion to withdraw his plea. Specifically,
defendant asserts that his plea was not knowing, voluntary and
intelligent because he was unaware of the full terms of the plea
agreement, particularly with respect to restitution. Although
review of the voluntariness of defendant's plea is not precluded
by his waiver of the right to appeal and has been preserved by
his unsuccessful motion to withdraw his plea (see People v Colon,
122 AD3d 956, 957 [2014]), we find his challenge to be without
merit. Whether to permit a defendant to withdraw his or her plea
of guilty "is left to the sound discretion of County Court, and
[withdrawal] will generally not be permitted absent some evidence
of innocence, fraud or mistake in its inducement" (People v
Curry, 123 AD3d 1381, 1383 [2014], lv denied 25 NY3d 950 [2015]
[internal quotation marks and citations omitted]). Here, a
review of the record confirms that County Court informed
defendant of the terms of the plea agreement, defendant executed
a two-page document that set forth the terms of the plea
agreement, which listed the victims of defendant's crimes and
specifically stated that restitution would be ordered "for ALL
burglaries – charged or uncharged." Furthermore, in response to
inquiries from the court, defendant acknowledged that he had
enough time to discuss the plea agreement with defense counsel,
was satisfied with the representation provided, understood the
terms of the plea agreement and was voluntarily pleading guilty
to engaging in conduct that constituted the crimes at issue. As
there is nothing in the record that reflects any misunderstanding
by defendant as to the plea agreement, we find that County Court
did not abuse its discretion in summarily denying defendant's
motion to withdraw his plea (see People v Barton, 126 AD3d 1238,
                              -3-                  106179

1239 [2015]; People v Curry, 123 AD3d at 1383; People v Colon,
122 AD3d at 957).

      To the extent that defendant challenges the imposition of
consecutive sentences, we agree with defendant, and the People
concede, that County Court erred in directing that the sentence
imposed on the forged instrument conviction run consecutively to
the indeterminate sentence imposed on the attempted burglary
conviction. Pursuant to Penal Law § 70.35, defendant's definite
sentence merges with and is satisfied by his service of the
indeterminate sentence (see People v Leabo, 84 NY2d 952, 953
[1994]; People v Piznarski, 113 AD3d 166, 182 n 11 [2013], lv
denied 23 NY3d 1041 [2014]). Nevertheless, as the Department of
Corrections and Community Supervision must calculate the period
of incarceration in accordance with Penal Law § 70.35, no action
by this Court is necessary (see People v Piznarski, 113 AD3d at
182 n 11).

     Lahtinen, J.P., Garry and Egan Jr., JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
