| People v Bodah |
| 2009 NY Slip Op 08516 [67 AD3d 1195] |
| November 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael W.Bodah, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria Esposito of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered June 18, 2007, convicting defendant upon his plea of guilty of the crimeof murder in the second degree, and (2) by permission, from an order of said court, entered May12, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, after a hearing.
In April 2007, defendant pleaded guilty to second degree murder for having intentionallycaused the death of his estranged wife. He waived his right to appeal. In accord with the terms ofhis plea agreement, he was sentenced to a prison term of 20 years to life. County Court issuedorders of protection against him in favor of the victim's two children.
Defendant subsequently moved to vacate the judgment, claiming that he received ineffectiveassistance from both the attorney who represented him at the time of his plea and anotherattorney who represented him at sentencing. County Court denied the motion after a hearing atwhich defendant and both attorneys testified. Defendant now appeals as of right from thejudgment of conviction and by leave from the denial of his application for postconviction relief.He contends that neither his plea nor his waiver of the right to appeal were knowing andvoluntary because his plea counsel allegedly provided ineffective assistance by misinforminghim [*2]of the sentences he might face under various potentialdispositions of his case. He further contends that neither counsel during plea negotiations orprior to sentencing provided County Court or the prosecution with a psychological evaluationreport that concluded that he was suffering from extreme emotional disturbance when he killedhis wife.[FN*]
Initially, contrary to defendant's claim, his waiver of the right to appeal was valid andenforceable because the plea colloquy and the written waiver demonstrate that he "knowingly,intelligently and voluntarily waived his right to appeal" (People v Ramos, 7 NY3d 737, 738 [2006]; see People v Lopez, 6 NY3d 248,256-257 [2006]; People vMeacham, 63 AD3d 1371, 1371 [2009]). Despite the valid waiver, his ineffectiveassistance claims are reviewable because the errors of counsel allegedly affected thevoluntariness of defendant's plea (seePeople v Gilmour, 61 AD3d 1122, 1124 [2009], lv denied 12 NY3d 925 [2009];People v Hall, 16 AD3d 848,849 [2005], lv denied 4 NY3d 887 [2005]). However, as they are based on facts outsidethe record, these claims are incapable of review on direct appeal from the judgment and may bereviewed only in the context of County Court's denial of defendant's postconviction application(see People v Borom, 55 AD3d1041, 1042 [2008]; People vCorbett, 52 AD3d 1023, 1024 [2008]).
At the hearing on defendant's postconviction motion, his counsel testified that he accuratelyinformed defendant of the potential sentences he might receive if convicted of first degreemanslaughter or second degree murder. Counsel also testified that he discussed the potentialaffirmative defense of extreme emotional disturbance with defendant, but that defendantnonetheless elected to plead guilty to the murder charge. To the extent that defendant's testimonycontradicted that of his counsel, it created a credibility issue for County Court to resolve (seePeople v Serna, 186 AD2d 836, 837 [1992]). Such credibility assessments are "entitled togreat deference on appeal" (People vBritton, 49 AD3d 893, 894 [2008], lv denied 10 NY3d 956 [2008]), and we findthat the court's determination is well supported by the analysis of the conflicting testimony setforth in the decision. As the court further found, the record of defendant's plea shows that heunequivocally accepted responsibility for his actions, acknowledged that he had discussed theplea with counsel and understood its consequences, and stated that he was entering his pleavoluntarily.
Finally, defendant did not show that the failure of counsel to provide the psychologicalevaluation report constituted ineffective assistance. When defendant entered his plea, CountyCourt had already committed to the sentence it later imposed, and it is clear from the pleaminutes that the court did not have the report at that time. Significantly, defendant testified at theposttrial hearing that he understood that the reason his counsel referred to the report during theplea proceeding was not to mitigate or otherwise affect the already bargained-for sentence, but toplace the report on the record so as to allow for its use in therapy during his incarceration, and heconfirmed that he had given a copy of the report to his prison therapist. Thus, we find that thecourt did not abuse its discretion in concluding that defendant's plea was knowingly andvoluntarily entered.
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote *: Defendant's brief also includedchallenges to the validity of the orders of protection, but those claims were withdrawn at the timeof oral argument.