People v. Wyant , 739 N.Y.S.2d 314 ( 2002 )

Appeal from a judgment of Livingston County Court (Alonzo, J.), entered January 18, 2001, convicting defendant upon his plea of guilty of attempted sodomy in the first degree.

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 attempted sodomy in the first degree (Penal Law §§ 110.00, 130.50 [3]). We reject the contention of defendant that County Court erred in denying his pro se motion to withdraw his guilty plea without holding a hearing. “Only in the rare instance will a defendant be entitled to an evidentiary hearing” on a motion to withdraw a plea (People v Tinsley, 35 NY2d 926, 927). Here, the grounds for the motion were facially without merit, and thus a hearing was not required (see, People v Rudenko, 243 AD2d 588, lv denied 91 NY2d 879). Defendant further contends that he was denied effective assistance of counsel because counsel took a position adverse to him on his motion to withdraw the guilty plea. The record establishes, however, that the court denied the motion before defense counsel made the allegedly adverse statements. Thus, defense counsel’s statements did not affect the court’s determination and did not deprive defendant of effective assistance of counsel (see, People v Cooper, 258 AD2d 891, lv denied 93 NY2d 968; People v Zirpola, 237 AD2d 967, lv denied 90 NY2d 899; People v Rodriguez, 189 AD2d 684, 685, lv denied 81 NY2d 892). The sentence is neither unduly harsh nor severe. Present — Pigott, Jr., P.J., Hayes, Wisner, Hurlbutt and Gorski, JJ.