| People v Stephenson |
| 2007 NY Slip Op 08307 [45 AD3d 968] |
| November 8, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David W.Stephenson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Alison M. Thorne of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered June 26, 2006, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree, a reduced charge under count 4 of the indictment. Aspart of the plea agreement, defendant waived his right to appeal. Soon thereafter, defendant wroteletters to County Court claiming that his attorney pressured him into accepting the plea as,otherwise, he would "receive the wrath of the judge" who would ensure indictments in otherjurisdictions. As a result, a hearing was held at which defendant stated that he was not seeking towithdraw the plea and there would be no more letters. However, defendant subsequently moved,pro se, to withdraw his plea, making the same accusations about defense counsel. County Courtdenied the motion and defendant was sentenced to a prison term of six years, with two years ofpostrelease supervision.[*2]
Defendant initially contends that, as a result of coercivetactics by his defense counsel, he received ineffective assistance and his plea was not voluntaryand, as such, his motion to withdraw his plea should have been granted. We disagree. The recordevidence reveals that, before accepting defendant's plea, County Court thoroughly explained allof the ramifications of pleading guilty, including the rights defendant would be forfeiting, anddefendant unequivocally affirmed that he was pleading guilty of his own free will, he had notbeen pressured by anyone into doing so and he was satisfied with his counsel's representation.Defendant reiterated these affirmations at the subsequent hearing, where County Court assureddefendant, as it did at the plea proceeding, that it had no authority to influence other jurisdictionsto also indict defendant. Further, the negotiated plea to one class B felony, a reduction of count 4of the indictment, which was a class A-II felony, considerably reduced defendant's sentencingexposure, as defendant admitted. Based on the foregoing, we find that defendant's plea wasvoluntary, he did not receive ineffective assistance and, therefore, his motion to withdraw hisplea, a matter addressed to the sound discretion of the trial court, was properly denied without ahearing (see People v Branton, 35AD3d 1035, 1036 [2006], lv denied 8 NY3d 982 [2007]; People v Hunt, 29 AD3d 1081,1082 [2006], lv denied 7 NY3d 813 [2006]; People v Sayles, 17 AD3d 924, 924-925 [2005], lv denied 5NY3d 794 [2005]).
Defendant also contends that County Court committed reversible error in failing to recuseitself as a result of what defense counsel allegedly told him about County Court promising toensure indictments in other jurisdictions unless he pleaded guilty. As no statutory ground existsfor the disqualification of County Court (see Judiciary Law § 14), defendant'sfailure to move for the court's recusal renders the claim unpreserved for our review (see People v Bigwarfe, 35 AD3d904, 905 [2006], lv denied 8 NY3d 878 [2007]; People v Mabry, 27 AD3d 835, 836 [2006]). Furthermore, suchclaim is waived as a result of defendant's knowing and voluntary waiver of the right to appealand guilty plea (see People v Anderson, 304 AD2d 975, 976 [2003], lv denied100 NY2d 578 [2003]; People v Palermo, 301 AD2d 957, 957 [2003], lv denied99 NY2d 657 [2003]).
Mercure, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.