Opinion
KA 01-01091
May 2, 2003.
Appeal from a judgment of Erie County Court (McCarthy, J.), entered March 9, 2001, convicting defendant upon his plea of guilty of attempted assault in the second degree (five counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-McLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of five counts of attempted assault in the second degree (Penal Law 110.00, 120.05, [7]). County Court did not abuse its discretion in summarily denying defendant's pro se motion to withdraw the guilty plea based upon defendant's generalized claim of innocence that is unsupported by the record ( see People v Webley, 256 A.D.2d 1119, 1119-1120, lv denied 93 N.Y.2d 880). "A defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors" ( People v. Dixon, 29 N.Y.2d 55, 57; see People v Alexander, 97 N.Y.2d 482, 485). The waiver by defendant of the right to appeal, which was knowing, intelligent and voluntary, encompasses his further contention that the bargained-for sentence is excessive ( see People v. Burse, 295 A.D.2d 968, lv denied 98 N.Y.2d 709; People v Wright, 288 A.D.2d 899, lv denied 97 N.Y.2d 689). In any event, defendant was sentenced to the minimum permissible terms of imprisonment ( see 70.06 [3] [e]; [4] [b]; 70.25 [2-a]).