| People v Bunce |
| 2007 NY Slip Op 08317 [45 AD3d 982] |
| November 8, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert G.Bunce, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Columbia County (Czajka, J.),rendered May 18, 2005, convicting defendant upon his plea of guilty of the crimes of sexualabuse in the first degree, sodomy in the first degree, sodomy in the second degree and attemptedsodomy in the first degree, (2) by permission, from an order of said court, entered June 29, 2006,which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without ahearing, and (3) by permission, from an order of said court, entered April 3, 2007, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
In January 2005, defendant was charged in a four-count indictment with the crimes ofsodomy in the second degree and sexual abuse in the first degree related to his August 2001sexual contact with a boy under age 15. He was also charged with sodomy in the first degree andattempted sodomy in the first degree stemming from his 1996 sexual abuse of a boy who wasunder age 11. He entered a guilty plea to all counts in exchange for the People's promise torecommend six years of incarceration, with three years of postrelease supervision. Just prior tothe plea colloquy, defendant signed and initialed each numbered paragraph of an eight-pagewritten plea agreement setting forth the foregoing terms. This lengthy document explained [*2]defendant's trial-related and appellate rights, all of which defendantexpressly waived, and he specifically initialed the highlighted warning which followed thePeople's promised sentence recommendation: "HOWEVER, I UNDERSTAND THAT THECOURT MAKES NO PROMISES WHATSOEVER." During the plea colloquy, defendant sworeto the truth of that document, which he indicated he signed in consultation with his attorney, andaffirmed his signature and understanding of it "in all respects." He responded in the affirmativewhen asked if he wished to give up his right to appeal, admitted to the specific proscribedconduct underlying each count, and entered a guilty plea to each count.
At sentencing, the People honored the agreement and urged that their recommended sentencebe imposed. County Court, after stating that it deemed the recommended sentence"inappropriate," imposed an aggregate prison sentence—as corrected the followingday—of 12 to 18 years. Defendant later moved pro se pursuant to CPL 440.20 to set asidethe sentence and, thereafter represented by counsel, moved pursuant to CPL 440.10 to set asidethe judgment of conviction. County Court separately denied the motions in written decisions.Defendant now appeals from the judgment of conviction and the orders denying his CPL article440 motions.
Initially, we find that defendant entered a knowing, voluntary and intelligent waiver of hisright to appeal, which was recited up front as part of the plea agreement, specified in the writtenagreement which explained that right, and which he specifically affirmed during thecolloquy(see People v Callahan, 80 NY2d 273, 283 [1992]; People v Seaberg, 74NY2d 1, 10 [1989]; see also People vLopez, 6 NY3d 248, 254 [2006]; cf. People v Riddick [SB], 40 AD3d 1259, 1259-1260 [2007],lv denied 9 NY3d 925, 926 [2007]; People v Evans, 27 AD3d 905, 905-906 [2006], lv denied 6NY3d 847 [2006]).[FN*]
Next, we find that defendant's guilty plea was also knowing, voluntary and intelligent andCounty Court properly denied his postplea motions to vacate. Contrary to defendant'scontentions, County Court never expressly agreed to bind itself to the sentence recommendation,instead advising defendant during the plea colloquy—albeit indirectly—that he"could get up to 54 years whether [he is] convicted by plea or after a trial [by] a jury"(emphasis added). Also, although the court did not elicit that defendant had read that document,the signed written agreement explicitly highlighted in large bold print that the court was makingno sentencing promises. Thus, we are not persuaded by defendant's claims that he entered theplea reasonably believing that the court had committed to the sentence recommendation and thatthe court's deviation entitled him to withdraw his plea (see People v McKenzie, 28 AD3d 942, 943 [2006], lvdenied 7 NY3d 759 [2006]; Peoplev Kane, 6 AD3d 986, 987 [2004]; People v Santana, 284 AD2d 730, 730 [2001],lv denied 96 NY2d 924 [2001]; People v Hadsell, 249 AD2d 682, 684 [1998],lv denied 92 NY2d 852 [1998]; cf. People v Saletnik, 285 AD2d 665, 668[2001]).
To be sure, however, the better practice is for the trial court (or counsel)—in all suchcases—to explicitly and clearly advise the defendant on the record, prior to the acceptanceof the [*3]plea, that the court is not bound to follow the People'ssentence recommendation (see People v Lopez, 6 NY3d at 256; see e.g. People vMcKenzie, 28 AD3d at 943; People v Santana, 284 AD2d at 731; People vHadsell, 249 AD2d at 684), rather than simply advising what maximum sentence he couldreceive if convicted on the plea (or after trial) or relying on a statement of noncommitment buriedin a lengthy written plea agreement. However, on the record before us, we find that defendantwas adequately advised of the plea terms, including that County Court was not bound by therecommendation and was not making a sentencing commitment.
Defendant also argued in his CPL 440.10 (1) motion that his plea should be vacated becausehe was never given a chance to read the written plea agreement at the time he signed it, and hisattorney never read or explained it to him or advised him that County Court would not be boundby the People's recommendation, but instead led him to believe he would get the recommendedsentence. He also alleged that he was "heavily medicated and confused" and was "having troublehearing the Judge" at the plea colloquy. However, these conclusory allegations contained indefendant's self-serving affidavit are unsupported by any other evidence in the record and arecontradicted by the transcript of the plea colloquy, in which defendant affirmed that he signed thedocument in consultation with his attorney and understood it "in all respects" and swore to itstruth. Defendant also expressly disclaimed having any disability affecting his ability tounderstand the document or the proceedings and affirmed that no other promises had been madeto him. Accordingly, the court's denial of that portion of defendant's motion without a hearingwas not improvident (see CPL 440.30 [4] [d]; see also People v Sayles, 17 AD3d 924, 924-925 [2005], lvdenied 5 NY3d 794 [2005]; Peoplev Woodard, 23 AD3d 771, 772 [2005], lv denied 6 NY3d 782 [2006]; Matter of Cadejah AA., 34 AD3d1141, 1142 [2006]).
Defendant's remaining claims of ineffective assistance are unsupported by the record, whichreflects that he expressed satisfaction with counsel during the plea colloquy, and the contraryconclusory allegations raised in his motions to vacate were reasonably rejected without a hearing(see CPL 440.30).
Finally, given defendant's valid waiver of the right to appeal, he has forfeited the right tochallenge the sentence as harsh and excessive (see People v Lopez, 6 NY3d at 256; People v Clow, 10 AD3d 803, 804[2004]). Defendant's claims that he was entitled to be present in court (see CPL 380.40)when County Court corrected his sentence the day after sentencing is raised for the first time onappeal and, as such, is unpreserved for our review. In any event, the official transcript of theamended sentence states "Defendant Present in Person" and the legal correction of the sentenceconsisted of reducing the maximum sentences for the 1996 crimes so they did not exceed twicethe minimum.
We have considered defendant's remaining contentions and find them unavailing.
Mercure, J.P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the judgment andorders are affirmed.
Footnote *: However, it would have beenbetter if County Court either explained the appeal waiver to defendant on the record or askedspecifically if he had discussed it with counsel (see People v Phillips, 28 AD3d 939 [2006], lv denied 7NY3d 761 [2006]).