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

1271
KA 13-01589
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRENDA CARTER-DOUCETTE, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (JOSEPH M. CALIMERI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered August 12, 2013. The judgment convicted
defendant, upon her plea of guilty, of criminal sale of a controlled
substance in the fifth degree.

     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 criminal sale of a controlled substance in the fifth
degree (Penal Law § 220.31), defendant contends that County Court
erred in summarily denying her motion to withdraw her plea and in
failing to assign her new counsel before making that determination.
With respect to defendant’s motion to withdraw her plea, we note that
defendant indicated at sentencing that she was not ready to proceed
and was seeking “a lesser plea.” Defendant asserted that she was not
able to review the People’s discovery until after she had pleaded
guilty and that she had therefore accepted a greater sentence than was
warranted by the evidence in the People’s case. The court responded
that defendant would not receive a reduced plea and, if she moved to
withdraw her plea in order to preserve the issue for appeal, the
motion would be denied. Defendant subsequently moved to withdraw her
plea, and the court denied the motion. We conclude that the court
thereby afforded defendant the requisite “reasonable opportunity to
present [her] contentions” (People v Tinsley, 35 NY2d 926, 927; see
People v Walker, 114 AD3d 1257, 1258, lv denied 23 NY3d 1044; People v
Rossborough, 105 AD3d 1332, 1333, lv denied 21 NY3d 1045).
Furthermore, “ ‘a guilty plea may not be withdrawn absent some
evidence or claim of innocence, fraud or mistake in its inducement’ ”
(People v Nichols, 302 AD2d 954, 954, lv denied 99 NY2d 657), and
defendant made no such showing here. Indeed, defendant is not
entitled to withdraw her plea “merely because [she] discovers . . .
                                 -2-                          1271
                                                         KA 13-01589

that [her] calculus misapprehended the quality of the [People’s] case”
(People v Jones, 44 NY2d 76, 81, cert denied 439 US 846, quoting Brady
v United States, 397 US 742, 757; see People v Murdock, 27 AD3d 1170,
1171).

     With respect to defendant’s contention that the court should have
assigned new counsel before denying her motion to withdraw her plea,
we note that defendant never sought new counsel, but contends for the
first time on appeal that she was entitled to new counsel because she
and her lawyer disagreed about her access to discovery materials in
open court such that her lawyer took a position that was adverse to
her interests. Defendant’s contention that she was denied access to
discovery materials is “belied by [her] statements during the plea
colloquy,” however, wherein she agreed that she had sufficient
opportunity to review the plea with defense counsel (People v Farley,
34 AD3d 1229, 1230, lv denied 8 NY3d 880). Moreover, we note in any
event that the record demonstrates that the court’s “ ‘rejection of
[the] motion was not influenced by’ [any] statements” made by defense
counsel (People v Wester, 82 AD3d 1677, 1678, lv denied 17 NY3d 803;
see People v Thaxton, 309 AD2d 1255, 1256, lv denied 1 NY3d 581;
People v Coleman, 294 AD2d 843, 843).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
