| People v Khan |
| 2016 NY Slip Op 03918 [139 AD3d 1261] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vNicholas M. Khan, Also Known as Niddy, Appellant. |
Brian M. Quinn, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered October 3, 2014, convicting defendant upon his plea of guilty ofthe crime of murder in the second degree.
In satisfaction of a consolidated 17-count indictment, defendant pleaded guilty tomurder in the second degree (intentional) pursuant to a plea agreement that included awritten cooperation agreement and a waiver of appeal. The charges primarily stem fromdefendant's actions, among others, in repeatedly discharging a gun in the direction of afleeing vehicle that had been stolen from him in a drug transaction, resulting in the deathof one of the vehicle's occupants from a gunshot to the head. The sealed cooperationagreement detailed the terms of the plea agreement and provided, among other things,that, if defendant fully cooperated with the outlined obligations, he would receive aprison sentence of 20 years to life; if he violated any of its terms, he would receive aprison sentence of 25 years to life. Defendant subsequently moved to withdraw his guiltyplea alleging that his assigned counsel had been ineffective. County Court assignedsubstitute counsel to represent defendant on the motion and thereafter denied the motion.After the court twice adjourned the proceedings to permit defendant to confer withassigned counsel to decide whether to cooperate, defendant renounced the cooperationagreement and requested that he be sentenced. Pursuant to the plea agreement, CountyCourt imposed a prison sentence of 25 years to life, and defendant nowappeals.
[*2] We affirm. Initially, a review ofthe plea colloquy, counseled written waiver signed in court and executed cooperationagreement establishes that defendant knowingly, voluntarily and intelligently waived hisright to appeal and to collaterally attack the conviction or sentence (see People v Lopez, 6 NY3d248, 256 [2006]; see alsoPeople v Sanders, 25 NY3d 337, 339-341 [2015]; People v Ramos, 7 NY3d737, 738 [2006]). The written waiver, reviewed with counsel and which defendantindicated he understood, adequately informed him that it was separate from thetrial-related rights automatically forfeited upon his guilty plea (see People vLopez, 6 NY3d at 256). Moreover, the record demonstrates that defendant discussedthe appeal waiver with counsel, had no questions about it, was able to explain it to thecourt and fully understood and unequivocally agreed to it. Therefore, defendant isprecluded from challenging the sentence as harsh and excessive (see People vLopez, 6 NY3d at 255-256).[FN1]
Turning to his plea, defendant argues that County Court erred in denying his motionto withdraw his plea without holding a hearing. "Whether to allow withdrawal of a guiltyplea is left to the sound discretion of County Court, and will generally not be permittedabsent some evidence of innocence, fraud or mistake in its inducement" (People v Martin, 136 AD3d1110, 1111 [2016] [internal quotation marks and citations omitted]). A hearing isrequired only when "the record presents a genuine issue of fact with respect to itsvoluntariness" (People vCrispell, 136 AD3d 1121, 1122 [2016] [internal quotation marks and citationsomitted]). Defendant's motion was premised upon an ineffective assistance of counselclaim, specifically, that assigned counsel had not fully explained to him the prison timerequired under the plea agreement and that, after speaking with counsel, he "was underthe impression that [he] would have to [serve six-sevenths] of 20 years" and wouldthereafter serve lifetime parole.[FN2] However, the record belies anycontention that defendant was not fully informed of the potential sentences that he faced,as the cooperation agreement unambiguously outlined all of the plea terms including thesentencing terms. Moreover, during the plea allocution, the court repeatedly explainedthe plea terms and consequences and the parameters of the sentencing promise, includingthe minimum and maximum promised sentences that depended on whether he cooperatedfully. To that end, the court emphasized that 20 years "is the minimum" sentence thatdefendant would have to serve if he cooperated, and that it would be up to the Board ofParole thereafter to determine when he would be released to lifetime parole; there was nomention of any possibility that he would be released after serving fewer than 20 years inprison. The court also ascertained that no other promises had been made to him.
Under these circumstances, we find that defendant's guilty plea was knowing,voluntary and intelligent and should be upheld (see People v Haffiz, 19 NY3d 883, 884 [2012]; Peoplev Fiumefreddo, 82 NY2d 536, 546-548 [1993]). In denying defendant's motion towithdraw his plea, County Court was entitled to rely on the record to conclude thatdefendant had been consistently and accurately advised of the sentencing conditions andthat no other promises or representations had been made regarding sentencing (seePeople v Ramos, 63 NY2d 640, 642[*3][1984]; compare People v Fitzgerald,56 AD3d 811, 813-814 [2008]). Defendant's claim that he had been pressured bycounsel to enter a guilty plea is also contradicted by his contrary assurances to the courtduring the plea allocution. In any event, the specific pressure that defendant described,that of potentially facing life in prison if he did not accept the plea agreement, is notpressure attributable to counsel and does not undermine the voluntariness of his plea(see People v Seaberg, 74 NY2d 1, 8 [1989]; People v Taylor, 135 AD3d 1237, 1237 [2016]).Consequently, the court did not abuse its discretion in denying defendant's motionwithout a hearing (see People vRiddick, 136 AD3d 1124, 1124 [2016]).
Next, defendant's claim that he was deprived of the effective assistance of counsel,which was preserved by his motion to withdraw his plea, survives his appeal waiver tothe extent that it impacts upon the voluntariness of his plea, but is without merit (see People v Howard, 119AD3d 1090, 1091 [2014], lv denied 24 NY3d 961 [2014]). Notably, "in thecontext of a guilty plea, a defendant has been afforded meaningful representation whenhe or she receives an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel" (People v Soprano, 135 AD3d 1243, 1243 [2016] [internalquotation marks and citation omitted]). Here, faced with strong evidence of defendant'sguilt, assigned counsel negotiated a favorable plea deal that resolved all charges in theconsolidated indictment and other drug-related charges; the agreement also avoidedpotential consecutive sentencing for defendant's distinct crimes (see Penal Law§ 70.25 [2]; People v Harris, 21 NY3d 739, 744-745, 750 [2013]).It bears emphasis that it was defendant's own choice not to cooperate that resulted in thehigher agreed-to sentence, and counsel nonetheless advocated for a lower sentencenotwithstanding defendant's noncooperation, which had been against counsel's advice.Thus, we find that defendant received meaningful representation (see People vBenevento, 91 NY2d 708, 712-716 [1998]).[FN3] Moreover, defendant failed to articulategood cause to replace assigned counsel, such as irreconcilable differences or a conflict ofinterest. We discern no abuse of discretion in County Court's decision, after ampleinquiry, not to appoint substitute counsel following the denial of defendant's motion towithdraw his guilty plea (seePeople v Smith, 18 NY3d 588, 592-593 [2012]; People v Stevenson, 112 AD3d989, 990-991 [2013], lv denied 22 NY3d 1159 [2014]).
Finally, contrary to defendant's claim, he was repeatedly advised—during theplea allocution, by the express terms of the cooperation agreement and at length prior tosentencing—of the consequences of violating the cooperation agreement, whichprovided that sentence would not be imposed until after his cooperation was complete.After conferring with counsel, defendant opted to proceed with sentencing, even after thePeople indicated that the terms of the cooperation agreement remained available despitedefendant's actions that violated that agreement. By electing to be promptly sentencedrather than cooperate, defendant knowingly waived the 20-year to life sentence. Thus, wefind that he was not deprived of the benefit of the bargain, and his remaining claimssimilarly lack merit.
[*4] Lahtinen, J.P.,Garry, Rose and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Given that defendantwas advised of the exact sentence he would receive if he did not cooperate, even if thesentence imposed were viewed as an enhanced sentence, his challenge to the severity ofthe sentence is precluded by his valid appeal waiver (see People v Smith, 123 AD3d 1375, 1376 [2014], lvdenied 26 NY3d 935 [2015]).
Footnote 2:Notably, in his motion towithdraw his plea, defendant did not allege that counsel misinformed him or that he wasinnocent.
Footnote 3:Defendant's claim thatcounsel failed to develop or discuss possible defenses with him is outside the record onappeal and is more appropriately raised in a motion pursuant to CPL article 440 (see People v Blair, 136 AD3d1105, 1106 [2016]). It is noted that during the plea allocution, County Court adviseddefendant that, by pleading guilty, he was waiving any potential defenses, whichdefendant indicated he understood (see People v Brown, 115 AD3d 1115, 1116 [2014], lvdenied 24 NY3d 959 [2014]).