| People v Sylvan |
| 2013 NY Slip Op 05242 [108 AD3d 869] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v HerbySylvan, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered May 6, 2011, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the first degree.
In June 2010, defendant and his brother, codefendant Colby Sylvan, were indicted oncharges of burglary in the first degree, assault in the second degree, robbery in the firstdegree, robbery in the second degree (two counts), unlawful imprisonment in the firstdegree, and grand larceny in the fourth degree.[FN*]On the scheduled trial date, defendant appeared before County Court jointly with hisbrother, who was represented by separate counsel. In the course of jury selection, a pleaagreement was reached, by which both men pleaded guilty to attempted robbery in thefirst degree in satisfaction of the indictment. As the allocution began, defendant stated inresponse to questioning that he had taken unspecified "[m]edication for [his] mentalillness" and was not really "thinking clearly." County Court then indicated that the guiltyplea could not be accepted under those circumstances, and defendant immediatelyresponded that he was thinking clearly. The court conducted a thorough inquiry,including questioning both counsel and [*2]defendant'smother as to defendant's mental state based upon their conversations with him, anddetermined that the proceedings could continue. Defendant thereafter waived his right toappeal and pleaded guilty to attempted robbery in the first degree.
Upon the scheduled sentencing date, the matter was adjourned after counselinformed County Court that he would be submitting a motion to withdraw the plea ondefendant's behalf. At the adjourned sentencing date, counsel advised that followingreview he had no good faith basis upon the statute or case law to present such a motion.County Court subsequently inquired whether defendant wanted to make any statementbefore sentencing, and defendant asserted that he did not want to go forward, but insteadwanted to take back his plea on the ground that he was on medication and "wasn't in [his]right state of mind and [he] was coerced to plead guilty [by his mother and counsel]."Defendant expressed innocence and requested a different attorney to pursue a withdrawalmotion. This request was denied after further questioning by the court, including adetailed review of the plea transcript. The court further noted that, to the extent that theexchange could "be considered a motion to withdraw the plea, it is denied." Thereafter,defendant was sentenced in accord with the plea agreement, and as a second violentfelony offender, to nine years in prison followed by five years of postrelease supervision.Defendant appeals.
Defendant contends that his guilty plea was involuntary based upon the ineffectiveassistance of counsel and actual innocence, and that County Court erred in not grantinghis motion to withdraw his plea and refusing to assign new counsel to pursue that motionon his behalf. "In the context of a guilty plea, a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the recordcasts doubt on the apparent effectiveness of counsel" (People v Carmona, 66 AD3d1240, 1242 [2009], lv denied 14 NY3d 799 [2010] [internal quotation marksand citations omitted]). Here, the plea was clearly advantageous—defendant's pleaand negotiated sentence represented a significant reduction from what he risked ifconvicted upon another of the multiple counts charged. Contrary to defendant'sargument, the grand jury testimony of the two victims does not support his assertion thathe was merely present as a bystander at the scene of the crime; rather, his convictionupon the attempted robbery charge was well supported by the evidence. Review of therecord reveals that counsel was effective in his representation of defendant throughoutthe proceedings (see People vFink, 97 AD3d 974, 976 [2012]).
Further, defendant now contends that his mental difficulties arose from conditions ofdepression and bipolar disorder, for which he had been receiving treatment. Suchconditions do not necessarily render a defendant unable to enter a knowing, voluntaryand intelligent plea, and here County Court's thorough inquiry adequately demonstratedthat defendant was fully able to understand the proceedings (see People v Flynn, 92 AD3d1148, 1151 [2012], lv denied 19 NY3d 996 [2012]; People v Mack, 90 AD3d1317, 1321 [2011]).
Finally, we find that defense counsel's statement—made prior to any pro semotion by defendant to withdraw his plea—that he had no basis for a motion towithdraw the plea did not result in counsel taking a position on defendant's pro se motionwhich was adverse to his client. Assigned counsel is not required to make or assist insuch a motion. Notably, counsel did not interfere nor affirmatively underminedefendant's subsequent effort to seek such relief and, significantly, defendant's pro seapplication was subsequently thoroughly explored by County Court (see People v Trombley, 91AD3d 1197, 1202 [2012], lv denied 21 NY3d 914 [2013]; People v Hutchinson, 57AD3d 1013, 1015 [2008], lv denied 12 NY3d 817 [2009]; compare [*3]People v McCray, 106 AD3d 1374, 1375 [2013]).The record establishes a substantial basis for County Court's denial of the request forsubstitution of counsel and withdrawal of the plea (see People v Linares, 2 NY3d 507, 511-512 [2004]).
Defendant's remaining contentions have been examined and found to be withoutmerit.
Rose, J.P., Stein and Spain, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant's brother wascharged with an additional count of unlawful imprisonment, relative to a separate victim.