People v. Russo

61 A.D.2d 1052, 403 N.Y.S.2d 277, 1978 N.Y. App. Div. LEXIS 10730

Opinion

Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered September 29, 1976, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. This appeal brings up for review the denial, after a hearing, of the defendant’s motion to withdraw his guilty plea. Judgment affirmed. The motion to withdraw the plea was made on the grounds of (1) defendant’s intoxication at the time he entered the plea and (2) misinformation by counsel as to the minimum period of incarceration should defendant be found guilty as charged. At the hearing defendant did not dispute his admission at the plea that he received $50 from the proceeds of a $1,300 sale of cocaine. Nowhere in the record does the defendant protest his innocence. We cannot hold, on this record, that the denial of the motion to withdraw the guilty plea was an improvident exercise of discretion. We have examined defendant’s constitutional claim relating to the severity of his sentence and find it to be without merit. Hopkins, J. P., Martuscello, Latham and Damiani, JJ., concur.