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

1021
KA 15-00042
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIFFANY J. ERNST, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN T. LEEDS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered December 16, 2014. The judgment convicted
defendant, upon her plea of guilty, of burglary in the third degree
and petit larceny.

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

     Memorandum: On appeal from a judgment convicting her upon her
plea of guilty of burglary in the third degree (Penal Law § 140.20)
and petit larceny (§ 155.25), defendant contends that County Court
abused its discretion in summarily denying her motion to withdraw her
plea at sentencing and “should have inquired further” into her grounds
for the motion. Defendant sought to withdraw her plea on the basis
that it was not knowingly, voluntarily and intelligently entered.
Specifically, defendant contends that she was “confused” at the time
of the plea and that the court was aware of her unspecified “mental
health issues.” We reject defendant’s contentions. When first
presented with the motion, “the court afforded defendant the requisite
‘reasonable opportunity to present [her] contentions’ ” and explain
the basis of the motion (People v Lindsay, 134 AD3d 1452, 1452, lv
denied 27 NY3d 967, quoting People v Tinsley, 35 NY2d 926, 927; see
People v Manor, 121 AD3d 1581, 1582, affd 27 NY3d 1012). We conclude
that, on this record, nothing more was required before the court
decided the motion.

     It is well settled that “[p]ermission to withdraw a guilty plea
rests solely within the court’s discretion . . . , and refusal to
permit 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 Watkins, 107 AD3d 1416, 1416, lv denied
22 NY3d 959 [internal quotation marks omitted]; see CPL 220.60 [3];
People v Anderson, 63 AD3d 1617, 1618, lv denied 13 NY3d 858). Here,
                                 -2-                          1021
                                                         KA 15-00042

defendant’s conclusory claims concerning her mental health issues are
“ ‘unsupported by any medical proof, . . . [and do] not raise a
sufficient question of fact regarding the voluntariness of [her] plea
so as to require an evidentiary hearing’ ” (People v Russell, 79 AD3d
1530, 1531; see People v McNair [appeal No. 1], 186 AD2d 1089, 1089,
lv denied 80 NY2d 1028). Even if one were to credit defendant’s self-
reports that she suffered from some mental health issues in the past,
we note that it is well settled that “[a] history of prior mental
illness or treatment does not itself call into question [a]
defendant’s competence” (People v Taylor, 13 AD3d 1168, 1169, lv
denied 4 NY3d 836; see People v Young, 66 AD3d 1445, 1446, lv denied
13 NY3d 912). As for defendant’s state of mind at the time of the
plea, there is nothing in the record to support defendant’s assertion
that her alleged mental health issues undermined her “ ‘ability to
understand the terms and consequences of [her] guilty plea’ ” (People
v Tracy, 125 AD3d 1517, 1518, lv denied 27 NY3d 1008), or otherwise
“so stripped [her] of orientation or cognition that [s]he lacked the
capacity to plead guilty” (People v Alexander, 97 NY2d 482, 486; see
People v Wolf, 88 AD3d 1266, 1267, lv denied 18 NY3d 863; Young, 66
AD3d at 1446). We therefore conclude that the court did not abuse or
improvidently exercise its discretion in denying the motion to
withdraw the plea.

     Although defendant further contends that her plea was not
knowingly, voluntarily, or intelligently entered because “it [was]
obvious that [she] was totally confused” at the time of the plea, that
contention lacks merit. During the plea colloquy, defendant stated
that she was “confused” during a discussion whether she would be
eligible for a diversion program. After a lengthy discussion with the
court, the prosecutor, and defense counsel concerning her
ineligibility for that diversion program, defendant proceeded with the
colloquy with no further indication of any confusion (see People v
Ellett, 245 AD2d 952, 953, lv denied 91 NY2d 925). We thus conclude
that the court “fulfilled its duty to inquire further” (People v
Swarts, 64 AD3d 801, 802; see People v Leonard, 25 AD3d 925, 925-926,
lv denied 6 NY3d 850), and the subsequent “ ‘protestations [of
defendant] as to [her] . . . [continued] confusion . . . ring hollow’
in light of [her] admissions during the plea colloquy” (People v
McNally, 59 AD3d 959, 960, lv denied 12 NY3d 819, quoting Alexander,
97 NY2d at 486; see People v Hayes, 39 AD3d 1173, 1175, lv denied 9
NY3d 923).




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