State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 105906 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

EDGAR G. SAUNDERS SR.,

Appellant.

________________________________

Calendar Date: February 11, 2015

Before: Peters, P.J., Garry, Rose and Lynch, JJ.

__________

Eugene P. Grimmick, Troy, for appellant.

Joel E. Abelove, District Attorney, Troy (Vincent J.

O'Neill of counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the County Court of Rensselaer

County (Ceresia, J.), rendered March 28, 2013, convicting

defendant upon his plea of guilty of the crime of attempted

burglary in the second degree.

In satisfaction of a five-count indictment, defendant

pleaded guilty to a reduced charge of attempted burglary in the

second degree and waived his right to appeal. Thereafter,

pursuant to CPL 220.60 (3), defendant moved to withdraw his plea.

County Court denied the motion without a hearing and sentenced

defendant, in accordance with the plea agreement, to 41⁄2 years in

prison to be followed by five years of postrelease supervision.
-2- 105906 

Defendant appeals.1

County Court properly denied defendant's motion without a

hearing. A trial court "has broad discretion in its fact-finding

inquiry on [a] motion [to withdraw a plea] and often a limited

interrogation by the court will suffice"; it is "[o]nly in the

rare instance [that] a defendant [is] entitled to an evidentiary

hearing" (People v Mitchell, 21 NY3d 964, 966-967 [2013]

[internal quotation marks and citation omitted]; see People v

Brown, 14 NY3d 113, 116 [2010]). Moreover, "such motions

generally will not be granted absent evidence of fraud, innocence

or mistake in the inducement" (People v McKinney, 122 AD3d 1083,

1084 [2014]; see People v Wilson, 101 AD3d 1248, 1249 [2012]). 

Defendant argues that his plea to attempted burglary in the

second degree was fraudulently induced because it was based upon

the People's representation that the building was a dwelling,

while subsequent evidence – unsworn letters from defendant's

paramour and another witness indicating that the building

appeared to be vacant and unlivable – raised questions regarding

whether the building was, in fact, suitable for occupancy (see

generally People v DeFreitas, 116 AD3d 1078, 1083 [2014], lv

denied 24 NY3d 960 [2014]). We cannot agree.

The letters submitted in connection with the motion were

contradicted by defendant's admission during the plea allocution

that he was aware that a person had been living in the building's

third floor apartment, which contained that individual's food and

clothing (see People v Little, 92 AD3d 1036, 1037 [2012]). 

Further, in view of defendant's unequivocal statement on the

record that he did not have permission to go into the building,

his additional unexplained comment that he had a key to the

building does not imply that he was licensed to enter and take

1 Although the notice of appeal correctly sets forth the

Penal Law statutes pursuant to which defendant was convicted, it

erroneously indicates that the judgment convicted him of the

crime of attempted sexual abuse in the second degree. We

exercise our discretion to overlook the inaccuracy and treat the

notice of appeal as valid (see CPL 460.10).
-3- 105906 

what he wanted. Moreover, defendant's claim that, based on the

new evidence, he now believes that the People could not have

proven their case against him does not provide a legitimate basis

for withdrawal of a plea (see People v McKinney, 122 AD3d at

1084; People v Wilson, 101 AD3d at 1249). Finally, to the extent

that defendant raises the issue, nothing in the record casts

doubt on the effectiveness of counsel (see People v Little, 92

AD3d at 1037).

Peters, P.J., Garry and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court