SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

744 

KA 13-00713 

PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RAYMOND L. LEACH, JR., ALSO KNOWN AS RAYMOND L. 

LEACH, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Genesee County Court (Robert C.

Noonan, J.), rendered April 11, 2013. The judgment convicted

defendant, upon his plea of guilty, of criminal contempt in the first

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a plea

of guilty of criminal contempt in the first degree (Penal Law

§ 215.51 [b] [vi]), defendant contends that his plea was not

knowingly, intelligently, and voluntarily entered and, thus, that

County Court erred in denying his motion to withdraw his plea. We

reject that contention. “Permission to withdraw a guilty plea rests

solely within the court’s discretion . . . , and refusal to permit

withdrawal does not constitute an abuse of discretion unless there is

some evidence of innocence, fraud, or mistake in inducing the plea”

(People v Robertson, 255 AD2d 968, 968, lv denied 92 NY2d 1053; see

People v Zimmerman, 100 AD3d 1360, 1361, lv denied 20 NY3d 1015). 

Here, we perceive no abuse of discretion.

We conclude that “[d]efendant’s contention that he was pressured

into accepting the plea is belied by his statements during the plea

proceedings” (People v Garner, 86 AD3d 955, 955; see generally

Zimmerman, 100 AD3d at 1361-1362). We further conclude that, “[t]o

the extent that defendant contends that defense counsel was

ineffective because he coerced defendant into pleading guilty, that

contention is [also] belied by defendant’s statement during the plea

colloquy that the plea was not the result of any . . . coercion”

(People v Campbell, 62 AD3d 1265, 1266, lv denied 13 NY3d 795). 
-2- 744 

KA 13-00713 

Defendant contends that his guilty plea was not knowing,

intelligent and voluntary because the court failed to advise him of

the potential periods of incarceration for an enhanced sentence based

upon a postplea arrest, but he failed to preserve that contention for

our review inasmuch as he failed to move to withdraw the plea or to

vacate the judgment of conviction on that ground (see People v Halsey,

108 AD3d 1123, 1124). We decline to exercise our power to review that

contention as a matter of discretion in the interest of justice (see

CPL 470.15 [3] [c]).

Contrary to defendant’s contention, “[a]lthough . . . [his]

initial statements . . . during the factual allocution may have

negated [an] essential element of [the crime of criminal contempt in

the first degree], his further statements removed any doubt” that he

had committed that crime (People v Trinidad, 23 AD3d 1060, 1061, lv

denied 6 NY3d 760; see People v Thomas, 56 AD3d 1240, 1240, lv denied

12 NY3d 763).

We agree with defendant that his valid waiver of the right to

appeal does not encompass the challenge to the severity of the

sentence inasmuch as the court “ ‘failed to advise defendant of the

potential periods of incarceration that could be imposed, including

the potential periods of incarceration for an enhanced sentence . . 

. , before he waived his right to appeal’ ” (People v Scott, 101 AD3d

1773, 1774, lv denied 21 NY3d 1019; see People v Huggins, 45 AD3d

1380, 1380-1381, lv denied 9 NY3d 1006; cf. People v Jackson, 34 AD3d

1318, 1319, lv denied 8 NY3d 923). We nevertheless conclude that the

sentence is not unduly harsh or severe.

Entered: July 11, 2014 Frances E. Cafarell

Clerk of the Court