NOCE, MATTHEW v. PEOPLE v ( 2016 )


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  •         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
    

Document Info

Docket Number: KA 12-01527

Judges: Whalen, Peradotto, Nemoyer, Curran, Troutman

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 11/1/2024