| People v Cole |
| 2014 NY Slip Op 04258 [118 AD3d 1098] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1] (June 12, 2014)
| The People of the State of New York, Respondent, vRaymond Cole, Jr., Also Known as Junior, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Mark D. Suben, District Attorney, Cortland (Kenneth H. Tyler Jr. of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Cortland County (Ames,J.), rendered March 18, 2008, convicting defendant upon his plea of guilty of the crimeof attempted criminal sale of a controlled substance in the third degree.
Defendant was indicted and charged with two counts of criminal sale of a controlledsubstance in the third degree. Following the denial of his motion to dismiss theindictment, defendant pleaded guilty to one count of attempted criminal sale of acontrolled substance in the third degree in full satisfaction of both the underlyingindictment and other pending charges. County Court denied defendant's subsequentmotion to withdraw his plea without a hearing and thereafter sentenced defendant to timeserved and five years of probation. This appeal by defendant ensued.
We affirm. "A guilty plea generally represents a compromise or bargain struck afternegotiation between defendant and the People. As such, it marks the end of a criminalcase, not a gateway to further litigation" (People v Taylor, 65 NY2d 1, 5 [1985];see People v Mercer, 81AD3d 1159, 1160 [2011], lv denied 19 NY3d 999 [2012]). For that reason,"[a] guilty plea not only constitutes an actual waiver of certain rights associated with atrial, but also effects a forfeiture of the right to renew many arguments made before theplea" (People v Taylor, 65 NY2d at 5), including claims founded uponnonjurisdictional defects in the grand jury proceeding (see People v Gerber, 182AD2d 252, 260-261 [1992], lv denied 80 NY2d 1026 [1992]), the legalsufficiency of the evidence underlying the indictment (see People v Caban, 89 AD3d1321, 1322 [2011]; Peoplev Heller, 67 AD3d 1253, 1254 [2009]; People v Cintron, 62 AD3d 1157, 1158 [2009], lvdenied 13 NY3d 742 [2009]; People v Melendez, 48 AD3d 960, 960 [2008], lvdenied 10 NY3d 962 [2008]) and the form and factual specificity thereof (seePeople v Taylor, 65 NY2d at 5; People v Slingerland, 101 AD3d 1265, 1265-1266 [2012],lv denied 20 NY3d 1104 [2013]), as well as any claim that the counts containedtherein are multiplicitous[FN*] (see People v Oakley, 112 AD3d 1064, 1064 [2013], lvdenied 22 NY3d 1140 [2014]; People v Chase, 101 AD3d 1141, 1141 [2012], lvdenied 20 NY3d 1097 [2013]; People v Slingerland, 101 AD3d at1265-1266). Accordingly, defendant's present claims—that the evidence beforethe grand jury consisted solely of incompetent hearsay evidence and, therefore, waslegally insufficient to support the indictment, that the indictment was facially defective inthat it failed to give notice of the specific time and date of the alleged sales and thatcounts one and two of the indictment were multiplicitous because the same offense wascharged in both counts—were forfeited by his subsequent plea of guilty (seePeople v Chase, 101 AD3d at 1141; People v Slingerland, 101 AD3d at1265-1266; People v Heller, 67 AD3d at 1254).
Turning to defendant's motion to withdraw his plea, to the extent that defendant'smotion is based upon his assertion that counsel provided him with erroneous legal adviceor withheld certain documents from him, this claim implicates matters outside of therecord and, as such, is more properly the subject of a CPL article 440 motion (see People v English, 100AD3d 1147, 1148 [2012]; People v Underdue, 89 AD3d 1132, 1134 [2011], lvdenied 19 NY3d 969 [2012]). As to the balance of defendant's motion, "[t]hedecision to permit withdrawal of a guilty plea is a matter within the trial court's sounddiscretion, and a hearing is required only where the record presents a genuine question offact as to its voluntariness" (People v Carbone, 101 AD3d 1232, 1234 [2012] [internalquotation marks and citations omitted]; see People v Smith, 89 AD3d 1328, 1328 [2011]). Here,County Court conducted a thorough and detailed plea colloquy, during the course ofwhich defendant readily admitted to conduct constituting the relevant crime, stated thathe was satisfied with counsel's services, acknowledged that he was forfeiting the right toraise any available defenses, denied being threatened or coerced in any fashion andindicated that he was pleading guilty freely and voluntarily. Under these circumstances,defendant's unsubstantiated assertions of innocence were insufficient to trigger a hearing,and County Court properly denied defendant's motion to withdraw his plea (seePeople v Smith, 89 AD3d at 1328; People v Griffin, 89 AD3d 1235, 1236-1237 [2011]; People v Herringshaw, 83AD3d 1133, 1133-1134 [2011]). Defendant's remaining contentions, to the extentnot specifically addressed, have been examined and found to be lacking in merit.
Peters, P.J., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:"An indictment isduplicitious when a single count charges more than one offense. It is multiplicitous whena single offense is charged in more than one count" (People v Alonzo, 16 NY3d 267, 269 [2011] [citationsomitted]). Although defendant argues on appeal that the underlying indictment wasduplicitous, it is apparent from a review of his respective motions that his actual claim isthat the subject indictment is multiplicitous.