| People v VanDusen |
| 2008 NY Slip Op 02513 [49 AD3d 1031] |
| March 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChadVanDusen, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chenango County (Daley, J.),rendered June 8, 2006, convicting defendant upon his plea of the crime of burglary in the firstdegree.
In satisfaction of an eight-count indictment stemming from a home invasion in the Town ofNew Berlin, Chenango County, defendant pleaded guilty to the crime of burglary in the firstdegree. However, at the sentencing hearing he expressed a desire to withdraw his plea of guiltybecause "[h]e [felt] that he was coerced into his plea when he was in front of the [c]ourt lasttime." In the absence of any further explanation of the request, County Court denied defendant'smotion without a hearing and he was sentenced to, among other things, a term of imprisonmentof 10 years. In addition, he orally waived his right to appeal at the time of his plea, and heaffirmed the waiver both orally and in writing at the conclusion of his sentencing hearing.Contending that County Court erred in failing to conduct a searching inquiry following hisassertion at the sentencing hearing that he felt he had been coerced, defendant appeals and weaffirm.
Inasmuch as defendant affirmed his waiver of his right to appeal both orally and in writingfollowing County Court's denial of his motion to withdraw, we find that his challenge to theextent of County Court's inquiry upon that motion to be precluded by his waiver. Although theunderlying claim of coercion survives a valid appeal waiver (see People v Bruning, 45AD3d [*2]1179, 1180 [2007]), defendant challenges, as limitedby his brief, only the trial court's decision to summarily deny the motion without a hearing. Suchan argument is "addressed merely to the adequacy of the procedures the court used" in decidingdefendant's motion to withdraw and, therefore, it "may effectively be waived by a voluntarily andintelligently made agreement entered in connection with a sentence or plea bargain" (People vCallahan, 80 NY2d 273, 281 [1992]; see People v Di Donato, 87 NY2d 992, 993[1996]; People v Wright, 256 AD2d 643, 646 [1998], lv denied 93 NY2d 880[1999]).
In any event, were we to reach the merits, we would find defendant's argument to beunavailing. The record reveals that, once defendant's claim of coercion was advanced, CountyCourt inquired of defense counsel as to the basis for this claim and, when no elaboration wasoffered, denied the motion. Considering that the record is barren of any evidence of coercion anddefendant was afforded an opportunity to present his claim to the court, County Court's inquirywas adequate and its denial of defendant's motion was not an abuse of discretion (see Peoplev Fiumefreddo, 82 NY2d 536, 543-544 [1993]; People v Smith, 270 AD2d 719, 720[2000]; People v Anderson, 270 AD2d 509, 510 [2000], lv denied 95 NY2d 792[2000]; People v Stamps, 268 AD2d 886, 888 [2000], lv denied 94 NY2d 925[2000]; People v Feliciano, 242 AD2d 787, 787 [1997]).
In light of our conclusion, we need not reach defendant's double jeopardy argument.
Mercure, J.P., Peters, Kane and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.