People v. Nunez

170 A.D.2d 898, 566 N.Y.S.2d 727, 1991 N.Y. App. Div. LEXIS 2459

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1991
• Status: Published

Opinion

Appeal from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered January 30, 1990, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

We reject defendant’s contention that County Court erred in denying his motion to withdraw his plea of guilty. The record establishes that the court conducted the required inquiry when it accepted defendant’s plea to insure that the elements of the crime were established and that the plea was knowing and voluntary (see, People v Kelsch, 96 AD2d 677). Furthermore, although given the opportunity to do so, defendant failed to set forth any facts to support his motion (see, People v Zuk, 130 AD2d 886, lv denied 70 NY2d 659). Under these circumstances, there was also no abuse of discretion in the denial of the motion by the court without it first conducting an evidentiary hearing (see, supra). Finally, we find that defendant was provided with effective assistance of counsel (see, People v Bell, 141 AD2d 749) and there was no abuse of discretion by the court in imposing the prison sentence of 8 Vs years to life. The sentence was in accordance with the plea bargain and defendant was permitted to plead guilty to the lesser charge of criminal possession of a controlled substance in the second degree as opposed to first degree possession as had been charged in the indictment (see, People v Mackey, 136 AD2d 780, lv denied 71 NY2d 899).

Judgment affirmed. Mahoney, P. J., Casey, Weiss, Levine and Harvey, JJ., concur.