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People v. Elmore

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


December 31, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ISAAC F. ELMORE, DEFENDANT-APPELLANT. (APPEAL NO. 2.)

Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered April 27, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the first degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ.

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

Memorandum

On appeal from a judgment convicting him, upon his plea of guilty, of attempted burglary in the first degree (Penal Law §§ 110.00, 140.30 [1]), defendant contends that County Court erred in denying his motion to withdraw his plea. We conclude on the record before us that the court did not abuse its discretion in denying the motion where, as here, there is no evidence of "innocence, fraud, or mistake in inducing the plea" (People v Robertson, 255 AD2d 968, lv denied 92 NY2d 1053). The record does not support the contention of defendant that the court erroneously informed him that he would be eligible for shock incarceration, and defendant's general assertion of innocence, also unsupported by the record, does not entitle defendant to withdraw his plea (see People v Chestnut, 188 AD2d 480, 481, lv denied 81 NY2d 883).

20081231

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