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 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 N.Y.2d 926, 927). Here, the grounds for the motion were facially without merit, and thus a hearing was not required (
see, People v. Rudenko, 243 A.D.2d 588,
lv denied
91 N.Y.2d 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 A.D.2d 891,
lv denied
93 N.Y.2d 968;
People v. Zirpola, 237 A.D.2d 967,
lv denied
90 N.Y.2d 899;
People v. Rodriguez, 189 A.D.2d 684, 685,
lv denied
81 N.Y.2d 892). The sentence is neither unduly harsh nor severe.