Calendar Date: June 7, 2017
A. Cirando, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Robert A.
Mascari of counsel), for respondent.
Before: Peters, P.J., Rose, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Madison County
(McDermott, J.), rendered November 10, 2014, convicting
defendant upon his plea of guilty of the crime of attempted
burglary in the second degree.
December 28, 2013, defendant was charged with numerous crimes
after an incident in which he went to the home of his
daughter and her mother (hereinafter the victim) at 3:00 a.m.
and engaged in a confrontation with the victim and her
boyfriend. Pursuant to a plea agreement, defendant waived
indictment and pleaded guilty to the reduced charge of
attempted burglary in the second degree in satisfaction of a
superior court information and other potential charges. The
plea agreement, which included a waiver of appeal, provided
that the sentence would be between six months in jail with
five years of probation and two years in prison with three
years of postrelease supervision. Defendant was remanded to
jail pending a restitution hearing, during which time he was
arrested for assaulting another inmate. Defendant thereafter
moved to withdraw his guilty plea, which County Court denied
at the next appearance. Having previously indicated their
intent to seek an enhanced sentence, the People ultimately
agreed to resolve the jailhouse assault with an adjournment
in contemplation of dismissal and, pursuant to the plea
agreement, the court imposed a prison sentence of two years
to be followed by three years of postrelease supervision.
we find that defendant's waiver of appeal was not valid,
as neither the oral colloquy nor the written waiver signed by
defendant adequately conveyed "that the right to appeal
is separate and distinct from those rights automatically
forfeited upon a plea of guilty" (People v
Lopez, 6 N.Y.3d 248, 256 ; see People v
Mitchell, 144 A.D.3d 1327, 1328 ). Accordingly,
defendant's challenge to the factual sufficiency of the
plea allocution is not precluded (see People v
Atkinson, 124 A.D.3d 1149, 1150 , lv
denied 25 N.Y.3d 949');">25 N.Y.3d 949 ) and it was preserved by his
unsuccessful motion to withdraw his plea,  which he
contends should have been granted (see CPL 220.60
; People v Farnsworth, 140 A.D.3d 1538, 1539
). Nevertheless, we find his claims to be without
argues that his plea was not knowing, voluntary and
intelligent because he made statements during the plea
allocution that were equivocal, unclear or inadequate.
Contrary to defendant's claims, since he pleaded guilty
"to a lesser crime as part of a plea bargain, [County
C]ourt [was] not required to engage in a factual recitation
in order to establish the elements of the crime"
(People v Banks, 137 A.D.3d 1458, 1459 
[internal quotation marks and citation omitted]). Moreover,
defendant made no factual admissions that were inconsistent
with the crime to which he was pleading guilty (see
People v Seeber, 4 N.Y.3d 780, 781 ; cf.
People v Banks, 137 A.D.3d at 1460). Accordingly, we are
persuaded that defendant's guilty plea was a
"knowing, voluntary and intelligent choice among
alternative courses of action" (People v
Conceicao, 26 N.Y.3d 375, 382  [internal quotation
marks and citation omitted]; see People v
Fiumefreddo, 82 N.Y.2d 536, 543 ).
"[w]hether 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 Decker, 139 A.D.3d 1113,
1116  [internal quotation marks and citation omitted],
lv denied 28 N.Y.3d 928');">28 N.Y.3d 928 ). For the reasons
previously stated, we reject defendant's claims on the
motion premised upon the insufficiency of the allocution. In
support of his motion, defendant also submitted an affidavit
asserting that he had not intended to commit a crime when he
entered or remained unlawfully in the victim's home but,
rather, merely entered out of concern for his child, and that
he would not have pleaded guilty had he known that this was
an element of the offense. However, "[a] defendant is
not entitled to withdraw his [or her] guilty plea based on a
subsequent unsupported claim of innocence, where the guilty
plea was voluntarily made with the advice of counsel
following an appraisal of all the relevant factors"
(People v Fisher, 28 N.Y.3d 717, 726 
[internal quotation marks and citation omitted]; accord
People v Alexander, 97 N.Y.2d 482, 485 ). Under
these circumstances, we find no abuse of discretion in the
denial of defendant's motion.
we discern no extraordinary circumstances or abuse of
discretion warranting a reduction of the agreed-upon sentence
in the interest of justice, particularly given that it
resolved other charges and was significantly less than the
maximum permissible sentence (see Penal Law §
70.02  [c];  [c]; People v Godfrey, 148 A.D.3d
1364, 1364 ). Defendant's remaining claims have
been reviewed and determined to be lacking in merit.
Mulvey and Pritzker, JJ., concur.
that the ...