| People v Sullivan |
| 2017 NY Slip Op 06678 [153 AD3d 1519] |
| September 28, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v SeanSullivan, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 19,2011 in Albany County, convicting defendant upon his plea of guilty of the crime of criminalsexual act in the first degree.
Defendant was charged in a 13-count indictment with several residential burglaries, rape inthe first degree and other sex crimes committed during one of the burglaries, as well as othercrimes. In satisfaction of all charges, defendant pleaded guilty to criminal sexual act in the firstdegree as charged in count 6 and waived his right to appeal. Prior to sentencing, defendant sent apro se letter to Supreme Court, which the court treated as a motion to withdraw his guilty plea,adjourned the matter and assigned substitute counsel. Following a hearing, the court denied themotion and thereafter sentenced defendant, consistent with the plea agreement, to 18 years inprison to be followed by 20 years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's claim, the record establishes that his combined oral andwritten waiver of appeal was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d337, 339-341 [2015]; People vLopez, 6 NY3d 248, 256 [2006]; People v Pixley, 150 AD3d 1555, 1557 [2017]). To that end, duringthe plea allocution, a waiver of appeal was recited as a condition of the plea agreement;defendant agreed to it, and Supreme Court explained the nature of an appeal, that defendantordinarily retained the right to appeal and that a waiver of appeal as to his conviction andsentence was a condition of the plea agreement. The court also made clear that the waiver wasseparate and apart from the trial-related rights automatically [*2]forfeited by the guilty plea (see People v Lopez, 6 NY3d at256). Defendant further signed a written waiver acknowledging his understanding of andagreement to the waiver of appeal.[FN*] Given the valid appeal waiver, defendant'svarious challenges to the factual sufficiency of the plea allocution and to the sentence as harshand excessive are precluded (see People v Lopez, 6 NY3d at 256; People vPixley, 150 AD3d at 1557).
Further, we are not persuaded that Supreme Court abused its discretion in denyingdefendant's motion to withdraw his guilty plea. "Whether to permit a defendant to withdraw hisor her plea of guilty is left to the sound discretion of [the trial c]ourt, and withdrawal willgenerally not be permitted absent some evidence of innocence, fraud or mistake in itsinducement" (People v Beaver, 150AD3d 1325, 1325 [2017] [internal quotation marks and citation omitted]). Here, defendant'smotion to withdraw his plea as involuntary was primarily based upon the claims that he was notadequately advised of the constitutional trial-related rights that he was waiving and that theinquiry regarding his waiver of possible defenses was inadequate. With regard to the advisementof constitutional rights, the record establishes that defendant knowingly and voluntarily waivedthose rights in that the court specifically enumerated the right to a jury trial and the privilegeagainst self-incrimination and elicited that "defendant [had] consulted with his attorney about theconstitutional consequences of a guilty plea" (People v Tyrell, 22 NY3d 359, 365 [2013]; see People v Conceicao, 26 NY3d375, 382-384 [2015]). Contrary to defendant's contentions, his plea is not invalid "solelybecause the [t]rial [j]udge failed to specifically enumerate all the rights to which [he] was entitledand to elicit from him . . . a list of detailed waivers before accepting the guilty plea"(People v Tyrell, 22 NY3d at 365 [internal quotation marks and citation omitted]).
The record also reflects that, during the plea allocution, Supreme Court elicited fromdefendant that he had discussed possible defenses with counsel and understood that he waswaiving any defenses by pleading guilty. Defendant admitted his guilt under oath withouthesitation and, as counsel conceded in arguing in support of the motion, defendant made nostatements during the plea allocution that called into doubt his ability to form an intent orsuggesting that he was intoxicated at the time of the crime to which he entered a guilty plea so asto require further inquiry regarding that defense (see People v McKnight, 144 AD3d 1334, 1335 [2016], lvdenied 28 NY3d 1148 [2017]; cf.People v Doane, 145 AD3d 1088, 1089 [2016], lv denied 29 NY3d 997 [2017]).Further, as the People and the court recalled at the hearing without contradiction, the potential foran intoxication defense had been discussed by the parties during plea negotiations and hadcontributed to the People's willingness to, among other things, offer a lower agreed-uponsentence from that made in the initial plea offer. Under these circumstances, we are satisfied thatdefendant was aware of a potential intoxication defense, discussed this and other potentialdefenses with counsel prior to pleading guilty and, during the plea allocution, validly waived hisright to pursue potential defenses (seePeople v DeCenzo, 132 AD3d 1160, 1161 [2015], lv denied 27 NY3d 996[2016]).
Although defendant's related ineffective assistance of counsel claim survives his appealwaiver to the extent that it implicates the voluntariness of his plea (see People v Taylor, 144 AD3d1317, 1318 [2016], lv denied 28 NY3d 1151 [2017]), Supreme Court properlyrejected his motion to withdraw his plea on this ground. While substitute counsel argued thatdefendant's original counsel had failed to explore a potential intoxication defense, this wascontradicted by the court's (and the prosecutor's) recollection that this defense was, in fact, raisedby defense counsel, discussed and [*3]played a role in the pleanegotiations. Thus, in the context of this guilty plea, where counsel negotiated a very"advantageous plea and nothing in the record casts doubt on the apparent effectiveness ofcounsel" (People v Driscoll, 147AD3d 1157, 1158 [2017] [internal quotation marks and citation omitted], lv denied29 NY3d 1078 [2017]), we find that defendant received meaningful representation (seePeople v Benevento, 91 NY2d 708, 712 [1998]; see also People v Honghirun, 29 NY3d 284, 289 [2017]). In light ofthe foregoing, the court properly denied the motion (see People v Beaver, 150 AD3d at1325). Defendant's remaining contentions have been reviewed and determined to lack merit.
Garry, Rose, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:The written waiver was recitedas a condition of the plea, and Supreme Court made reference to and explained the meaning ofthe written waiver during the plea colloquy.