| People v Shurock |
| 2011 NY Slip Op 03311 [83 AD3d 1342] |
| April 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joshua A.Shurock, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chenango County (Sullivan, J.),rendered May 24, 2010, convicting defendant upon his plea of guilty of the crime of burglary inthe second degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to burglary in the seconddegree, waived his right to appeal and was furloughed pending sentencing. After violating theterms of his conditional release, defendant was returned to County Court on a bench warrant, atwhich time he expressed his desire to withdraw his plea—a request he renewed atsentencing. County Court denied defendant's motion and sentenced him as a second felonyoffender to the agreed-upon prison term of five years followed by five years of postreleasesupervision. Defendant now appeals.
We affirm. Preliminarily, we find that defendant validly waived his right to appeal. CountyCourt explained the appeal rights being waived, and defendant indicated that he both understoodthe rights being forfeited and had been given sufficient time to confer with counsel. Under thesecircumstances, defendant's refusal to sign the written waiver of appeal presented to him atsentencing did not render his prior oral waiver ineffective (see People v Mattison, 74[*2]AD3d 1495, 1495-1496 [2010], lv denied 15 NY3d922 [2010]).[FN*]
Turning to the merits, although defendant's challenge to the voluntariness of his plea surviveshis valid appeal waiver and, further, has been preserved for our review by his motion to withdrawhis plea (see People v Ortiz, 69AD3d 966, 967 [2010]; People vWyant, 47 AD3d 1068, 1069 [2008], lv denied 10 NY3d 873 [2008]), we find itto be lacking in merit. The plea allocution reveals that defendant was advised of and understoodthe charges against him, denied being under the influence of any illegal or controlled substances,expressed his satisfaction with counsel's services and indicated that he was entering into the pleaof his own free will. Contrary to defendant's assertion, he "was not required to recite the elementsof the crime or engage in a factual exposition" (People v Williams, 35 AD3d 971, 972 [2006], lv denied 8NY3d 928 [2007]), as his affirmative responses to County Court's inquiries, coupled with hisown statement, were sufficient to establish his guilt (see People v Singletary, 51 AD3d 1334, 1335 [2008], lvdenied 11 NY3d 741 [2008]; seegenerally People v Board, 75 AD3d 833, 834 [2010]). Accordingly, we find defendant'splea to be knowing, intelligent and voluntary.
Although the challenge to the summary denial of his motion to withdraw the plea survivesdefendant's appeal waiver (see People Smith, 77 AD3d 1189, 1190 [2010]), it similarlylacks merit. "The decision to permit withdrawal of a guilty plea is a matter within the trial court'ssound discretion, and a hearing is required only where the record presents a genuine question offact as to its voluntariness" (People v De Fabritis, 296 AD2d 664, 664 [2002], lvdenied 99 NY2d 557 [2002] [citation omitted]; see People v Russell, 79 AD3d 1530, 1530-1531 [2010]). Further,where, as here, "a defendant has been fully informed of the rights he [or she] is waiving bypleading guilty and proceeds to admit the acts constituting the crime, a subsequent protestation ofinnocence which is not substantiated by any evidence is generally insufficient to support arequest for vacatur of the plea" (Peoplev Thomas, 25 AD3d 879, 880 [2006], lv denied 6 NY3d 853 [2006] [internalquotation marks and citations omitted]; see People v Smith, 77 AD3d at 1190; People v Adams, 31 AD3d 1063,1065 [2006], lv denied 7 NY3d 845 [2006]). Defendant's conclusory and unsubstantiatedassertions of newly discovered evidence were insufficient to support his request (see People vSmith, 77 AD3d at 1190; People vShovah, 67 AD3d 1257, 1258 [2009], lv denied 14 NY3d 773 [2010];People v Singletary, 51 AD3d at 1334]). We do not find an abuse of discretion in CountyCourt's denial of the motion without a hearing.
Although defendant's ineffective assistance of counsel claim—insofar as it impacts thevoluntariness of his plea—is properly before us, we find it unpersuasive. "In the context ofa guilty plea, a defendant has been afforded meaningful representation when he or she receives anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel"(People v Singletary, 51 AD3d at 1335 [internal quotation marks and citations omitted];see People v Carmona, 66 AD3d1240, 1242 [2009], lv denied 14 NY3d 799 [2010]). Counsel made appropriatepretrial motions and negotiated both a favorable plea and a furlough for defendant pendingsentencing. Further, defendant's present claims of coercion are belied by the plea colloquy, as hespecifically stated that he had sufficient time to confer with counsel, was [*3]satisfied with counsel's services and was pleading guilty of his ownfree will. Defendant's contentions that counsel did not adequately investigate potential defensesor pursue the possibility of entering defendant in a drug treatment program concerns mattersoutside the record, which are more properly the subject of a CPL article 440 motion (see People v Lafoe, 75 AD3d 663,664 [2010], lv denied 15 NY3d 953 [2010]; People v Scitz, 67 AD3d 1251, 1252 [2009]).
Finally, defendant's challenge to the severity of his negotiated sentence is precluded by hisvalid appeal waiver (see People vStevens, 80 AD3d 791, 791 [2011]; People v Phelan, 77 AD3d 987, 988 [2010]). Defendant'sremaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: We note in passing that althoughdefendant's refusal to execute the written waiver violated the terms of the plea agreement, CountyCourt nonetheless imposed the agreed-upon sentence.