SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

986 

KA 12-01527 

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MATTHEW V. NOCE, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Frank P.

Geraci, Jr., J.), rendered July 25, 2012. The judgment convicted

defendant, upon his plea of guilty, of assault in the first degree. 

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Monroe County Court for further

proceedings in accordance with the following memorandum: On appeal

from a judgment convicting him upon his plea of guilty of assault in

the first degree (Penal Law § 120.10 [1]), defendant contends that

County Court abused its discretion in denying his motion to withdraw

his plea without a hearing. We agree. 

This case arises from an incident in which defendant unlawfully

entered his ex-girlfriend’s home, found a man sleeping in her bed, and

repeatedly struck him about the head with a blunt object. During the

plea colloquy, it was noted that defendant “had some kind of brain

surgery” in the weeks before the assault. The court asked defendant

if he had discussed with defense counsel whether the recent brain

surgery “would raise any issue,” and defendant responded, “I’m told

no.” Defendant thereafter submitted a sentencing memorandum that

included a report from a neurologist who stated that, only 22 days

before the assault, defendant underwent resection of a portion of his

brain and was prescribed multiple medications. 

Before sentencing, defendant discharged his counsel and moved

through new counsel to withdraw his guilty plea. In his affidavit in

support of the motion, defendant stated that he had wanted to go to

trial and assert a psychiatric defense instead of pleading guilty, but

his prior defense attorney had falsely told him that such a defense

was unavailable because his neurosurgeon had refused to testify at

trial. Defendant also submitted an affidavit from his neurosurgeon,

who stated that he never spoke to defendant’s prior attorney and never
-2- 986 

KA 12-01527 

refused to testify. In a responding affirmation, the prosecutor

stated that, upon information and belief, defendant’s prior attorney

did not tell defendant that his neurosurgeon had refused to testify.

It is well settled that the determination whether to grant a

motion to withdraw a guilty plea is within the court’s discretion and

that a defendant is entitled to an evidentiary hearing only in rare

instances (see People v Manor, 27 NY3d 1012, 1013; People v Henderson,

137 AD3d 1670, 1670-1671). The denial of such a motion is not an

abuse of discretion “unless there is some evidence of innocence,

fraud, or mistake in inducing the plea” (Henderson, 137 AD3d at 1671

[internal quotation marks omitted]). Here, if the allegations in

defendant’s affidavit are true, then defendant’s plea was not

voluntarily and intelligently entered inasmuch as it was based upon a

mistaken belief that a psychiatric defense was unavailable (see id.). 

We therefore conclude that defendant’s motion was not “patently

insufficient on its face” (People v Mitchell, 21 NY3d 964, 967), and

that the court abused its discretion in denying the motion without an

evidentiary hearing (see Henderson, 137 AD3d at 1671). Thus, we hold

the case, reserve decision, and remit the matter to County Court for a

hearing on defendant’s motion. 

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court