State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 107793 

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THE PEOPLE OF THE STATE OF 

NEW YORK, 

Respondent, 

v MEMORANDUM AND ORDER

JOSE H. CADET, 

Appellant.

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Calendar Date: October 18, 2016

Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

__________

G. Scott Walling, Schenectady, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E.

Fischer of counsel), for respondent.

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Clark, J.

Appeal from a judgment of the County Court of Washington

County (McKeighan, J.), rendered June 5, 2015, convicting

defendant upon his plea of guilty of the crime of criminal

possession of a controlled substance in the third degree. 

Defendant pleaded guilty to criminal possession of a

controlled substance in the third degree and waived his right to

appeal. County Court denied defendant's subsequent motion to

withdraw his guilty plea and sentenced him, in accordance with

the terms of the plea agreement, to a prison term of two years

followed by two years of postrelease supervision. Defendant

appeals.
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We are unpersuaded by defendant's contention that County

Court abused its discretion in summarily denying his motion to

withdraw his plea. It is within the trial court's discretion to

determine the nature and extent of the fact-finding procedures

necessary to decide a motion to withdraw a guilty plea and a

limited interrogation by the court will often be sufficient

(see People v Fiumefreddo, 82 NY2d 536, 544 [1993]; People v

Tinsley, 35 NY2d 926, 927 [1974]; People v Riddick, 136 AD3d

1124, 1124 [2016], lv denied 27 NY3d 1154 [2016]). "An

evidentiary hearing will be required only where the record

presents a genuine question of fact as to the plea's

voluntariness" (People v Decker, 139 AD3d 1113, 1116 [2016]

[internal quotation marks and citations omitted], lv denied 28

NY3d 928 [2016]; see People v Brown, 14 NY3d 113, 116 [2010]). 

Here, defendant moved to withdraw his plea on the basis

that he continued to be harassed and threatened by a codefendant,

that he was innocent and that his guilty plea would result in his

deportation. A review of the plea colloquy reflects that County

Court explained, and defendant acknowledged that he understood,

the deportation consequences of the guilty plea (see People v

Rebelo, 137 AD3d 1315, 1317 [2016], lv denied 28 NY3d 936

[2016]). Additionally, the continued threats and harassment by a

codefendant do not undermine the voluntariness of the plea. 

Finally, defendant's sworn admissions during the plea allocution

contradict his conclusory and unsupported claim of innocence (see

People v Crispell, 136 AD3d 1121, 1122 [2016], lv denied 27 NY3d

1149 [2016]; People v Barton, 126 AD3d 1238, 1239 [2015], lv

denied 26 NY3d 1142 [2016]). 

Next, we agree with defendant that the waiver of the right

to appeal is invalid because he was not advised that his right to

appeal was separate and distinct from the rights that he

automatically forfeited by pleading guilty (see People v Lopez, 6

NY3d 248, 256 [2006]; People v Beverly, 137 AD3d 1421, 1422

[2016], lv denied 27 NY3d 1128 [2016]). As such, his challenge

to the sentence as harsh and excessive is not precluded. 

Nevertheless, we find no basis to disturb the sentence imposed. 

We note that the agreed-upon sentence was significantly less than

the maximum statutorily permitted sentence (see Penal Law § 70.70

[2] [a] [i]). Furthermore, our review of the record reveals no
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extraordinary circumstances or abuse of discretion to warrant a

reduction of the sentence in the interest of justice (see People

v White, 122 AD3d 1005, 1006 [2014]).

Peters, P.J., Garry, Devine and Aarons, JJ., concur.

ORDERED that the judgment is affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court