People v. Tillinghast

208 A.D.2d 1030, 618 N.Y.S.2d 584, 1994 N.Y. App. Div. LEXIS 9671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1994
• Status: Published

Opinion

White, J.

Appeal from a judgment of the County Court of Tompkins County (Sherman, J.), rendered January 31, 1994, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

This appeal arises out of County Court’s denial, without an evidentiary hearing, of defendant’s motion to withdraw his plea of guilty to the crime of criminal possession of a controlled substance in the third degree.

Initially, we reject the People’s argument that defendant waived his right to appeal as County Court (Friedlander, J.) failed to ascertain on the record if such waiver was voluntarily, knowingly and intelligently made (see, People v Callahan, 80 NY2d 273, 283).

Our review of the plea allocution indicates that the guilty plea was knowingly, intelligently and voluntarily made without any protestations of innocence and that defendant understood that he was waiving any defenses he might have had to the charges against him. Under these circumstances, defendant’s post-plea assertion of innocence based on the defenses of agency and entrapment does not vitiate his plea (see, People v Billingsley, 54 NY2d 960). Therefore, we find that County Court did not abuse its discretion in summarily denying defendant’s motion after giving him an opportunity to state the basis of his withdrawal application (see, People v Burke, 197 AD2d 731; People v Stone, 193 AD2d 838; People v De Gaspard, 170 AD2d 835, lv denied 77 NY2d 994). Accordingly, we affirm.

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Tompkins County for further proceedings pursuant to CPL 460.50 (5).