| People v Phillips |
| 2010 NY Slip Op 01706 [71 AD3d 1181] |
| March 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ralph B.Phillips, Also Known as Bucky Phillips, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira, for respondent.
Kavanagh, J. Appeals (1) from a judgment of the County Court of Chemung County(Buckley, J.), rendered December 20, 2006, convicting defendant upon his plea of guilty of thecrimes of attempted aggravated murder, attempted murder in the second degree, criminalpossession of a weapon in the second degree and criminal possession of stolen property in thethird degree, and (2) by permission, from an order of said court, entered August 15, 2008, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
Defendant, after he had escaped from the Erie County jail, was involved in three separateshootings where he fired at police officers killing one and wounding two others. Here, on June10, 2006, while driving a stolen vehicle in the Town of Veteran, Chemung County, defendantshot State Trooper Sean Brown, seriously wounding him. After he was apprehended inPennsylvania, defendant was charged with numerous crimes in connection with this shooting,and ultimately pleaded guilty to attempted aggravated murder, attempted murder in the seconddegree, criminal possession of a weapon in the second degree and criminal possession of stolen[*2]property in the third degree.[FN1]Prior to sentencing, defendant moved to withdraw his plea arguing, among other things, that hewas innocent and coerced into entering a guilty plea. County Court denied the motion andsentenced defendant to an aggregate prison term of 40 years to life, plus five years of postreleasesupervision.[FN2]Defendant, in a CPL 440.10 motion to vacate his judgment of conviction, renewed his claim thathis guilty plea was coerced and also argued that he had been denied the effective assistance ofcounsel. After County Court denied this motion without a hearing, defendant filed these appealsfrom the judgment of conviction and, by permission, from the order denying his CPL 440.10motion.
Defendant argues that County Court should have conducted a hearing prior to deciding hismotion to withdraw his guilty plea. Such a hearing " 'is required only where the record presents agenuine question of fact as to [the] voluntariness' " of the guilty plea (People v Atkinson,58 AD3d 943, 943 [2009], quoting People v De Fabritis, 296 AD2d 664, 664 [2002],lv denied 99 NY2d 557 [2002]; see People v Greathouse, 62 AD3d 1212, 1213 [2009], lvdenied 13 NY3d 744 [2009]; People v Singletary, 51 AD3d 1334, 1334 [2008], lvdenied 11 NY3d 741 [2008]). A fair reading of the content of defendant's plea allocutionconclusively demonstrates that he made a knowing, voluntary and intelligent decision to enter aguilty plea and there is a complete absence of any indication that defendant was fraudulentlyinduced or in any way coerced into entering his guilty plea (see People v Carmona, 66 AD3d 1240, 1241 [2009]; People v Pelkey, 63 AD3d 1188,1190 [2009], lv denied 13 NY3d 748 [2009]).[FN3]
As for his claim of innocence, defendant does not deny firing a shot at Brown, but claimsthat when he pulled the trigger, he did not harbor the intent to kill him. This rather belatedassertion stands in stark contrast to the clear and unambiguous admissions of guilt on this [*3]issue that defendant made during his plea allocution. In particular,defendant admitted that when he was stopped by Brown, he was an escapee on parole, driving astolen car and was concerned that he would be arrested as a fugitive. He confirmed that when hefired the shot at Brown, he knew that Brown was a police officer and did so with the intent to killhim. Defendant, during a comprehensive and detailed plea allocution, made similar admissionsas to the other charges to which he entered a guilty plea. As there is a complete lack of anycredible evidence in the record to support defendant's belated claims of innocence, we find thatCounty Court did not abuse its discretion in denying his application to withdraw his guilty pleawithout a hearing (see People vRosseter, 62 AD3d 1093, 1093-1095 [2009]; People v First, 62 AD3d 1043, 1044 [2009], lv denied 12NY3d 915 [2009]; People vThomas, 50 AD3d 1315, 1316 [2008]).
As for his claim of duress, defendant repeatedly assured County Court during his pleaallocution that he had not been threatened or coerced by anyone in connection with the plea andthat he entered the plea after being provided with a full and fair opportunity to confer withcounsel. While defendant now claims that he only pleaded guilty in return for a promise thatcharges against members of his immediate family would be dismissed, such "a plea agreement isnot inherently coercive or invalid simply because it affords a benefit to a loved one, as long asthe plea itself is knowingly, voluntarily and intelligently made" (People v Etkin, 284AD2d 579, 580 [2001], lv denied 96 NY2d 862 [2001]; see People v Pelkey, 63AD3d at 1189-1190).[FN4]
Finally, defendant's claim that he did not receive the effective assistance of counsel is beliedby the record. During the plea allocution, defendant acknowledged not only that he was satisfiedwith counsel's efforts on his behalf, but that his counsel had spent considerable time answeringhis questions, explaining the applicable law and discussing what options were available giventhat charges were pending against him in three different jurisdictions. In addition, we note thatcounsel secured a plea bargain for defendant that included a favorable disposition of chargesagainst members of defendant's family and made effective motions on his behalf during thecriminal proceedings. Simply stated, nothing in the record supports defendant's claim that he wasdenied meaningful representation and, therefore, his CPL 440.10 motion was properly denied(see People v Singletary, 51 AD3d at 1335; see also People v Leonard, 63 AD3d 1278, 1278 [2009], lvdenied 13 NY3d 797 [2009]; People v Hyson, 56 AD3d 890, 891-892 [2008], lv denied12 NY3d 758 [2009]).
Cardona, P.J., Mercure, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgmentand order are affirmed.
Footnote 1: While at large, defendant alsoburglarized a gun shop located in Chautauqua County and stole a large cache of weapons. Helater shot two State Troopers, killing Joseph Longobardo and seriously wounding Donald Baker.An indictment was subsequently filed in Chautauqua County charging defendant with aggravatedmurder, murder in the first degree, attempted aggravated murder, attempted murder in the firstdegree and burglary in the second degree. Additional charges were also lodged against defendantin Erie County in regard to his escape from a correctional facility.
Footnote 2: In connection with this pleaagreement, defendant also pleaded guilty to aggravated murder and attempted aggravated murderin Chautauqua County and escape in the first degree in Erie County. Sentences of 40 years to lifeand life without parole were imposed in Chautauqua County and 25 years to life in Erie County,all of which were to be served consecutively to the sentence imposed in this action.
Footnote 3: Similar motions made bydefendant in Chautauqua County and Erie County were also denied and each of those orders, aswell as the underlying convictions, were affirmed on appeal (People v Phillips, 56 AD3d 1163 [2008], lv denied 12NY3d 761 [2009] [Chautauqua County]; People v Phillips, 56 AD3d 1168 [2008], lv denied 11NY3d 928 [2009] [Erie County]).
Footnote 4: As part of the plea agreement,the District Attorney agreed not to prosecute defendant's ex-girlfriend for hindering prosecutionor his daughter for endangering the welfare of a child and resisting arrest.