| People v Martin |
| 2008 NY Slip Op 07281 [55 AD3d 1236] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Floyd Martin,Appellant. (Appeal No. 1.) |
—[*1] Floyd Martin, defendant-appellant pro se. Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), renderedAugust 21, 2006. The judgment convicted defendant, upon his plea of guilty of, inter alia,attempted murder in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of various crimes including attempted murder in the first degree (Penal Law§§ 110.00, 125.27 [1] [a] [vii]), assault in the first degree (§ 120.10 [1]),kidnapping in the second degree (§ 135.20), robbery in the first degree (§ 160.15[2]) and criminal use of a firearm in the first degree (§ 265.09 [1] [a]). In appeal No. 2,defendant appeals from a judgment convicting him upon his plea of guilty of two counts ofcriminal possession of a weapon in the third degree (§ 265.02 [3], [former (4)]).
We reject the contention of defendant in each appeal that County Court erred in denying hismotion to withdraw his pleas. " '[R]efusal to permit withdrawal [of a guilty plea] does notconstitute an abuse of . . . discretion unless there is some evidence of innocence,fraud, or mistake in inducing the plea' " (People v Pane, 292 AD2d 850, 850 [2002],lv denied 98 NY2d 653 [2002], quoting People v Robertson, 255 AD2d 968, 968[1998], lv denied 92 NY2d 1053 [1999]). Defendant presented no evidence of innocence,fraud or mistake in inducing the plea and, indeed, he repeatedly acknowledged that he had theright to proceed to trial by jury, that he was not influenced by defense counsel to plead guilty, andthat his pleas were voluntarily entered.
Defendant further contends with respect to appeal No. 1 that his written statement to thepolice should have been suppressed because it was induced by a promise made by the police andthus was involuntary. We reject that contention. The statement of a police detective thatdefendant's cooperation "would be given fair weight" did not "create[ ] a substantial risk that the[*2]defendant might falsely incriminate himself" (CPL 60.45 [2][b] [i]), "nor was it of such a nature that, under the totality of the circumstances, defendant's willwas overborne" (People v Engert, 202 AD2d 1023, 1024 [1994], lv denied 83NY2d 910 [1994]).
Defendant also contends in each appeal both that he was denied his right to counsel and thathe was denied his right to effective assistance of counsel. The record contains no support for thecontention of defendant that he was denied his right to counsel. The statement of defense counselconcerning defendant's dim prospect of success at trial did not constitute an abandonment ofrepresentation at the plea proceeding. To the extent that the further contention of defendant thathe was denied effective assistance of counsel survives his guilty pleas in each appeal (see generally People v Carlisle, 50AD3d 1451 [2008]; People v Burke, 256 AD2d 1244 [1998], lv denied 93NY2d 851 [1999]), we conclude that it is lacking in merit (see generally People v Ford,86 NY2d 397, 404 [1995]). In fact, the record reflects that defendant expressed satisfactionwith defense counsel's services.
The contention of defendant in appeal No. 1 that his conviction of kidnapping merged withhis conviction of assault and robbery does not survive his plea of guilty (see People vSantiago, 305 AD2d 1109, 1110 [2003], lv denied 100 NY2d 586 [2003]; Peoplev Quackenbush, 98 AD2d 875, 876 [1983]), and his contention that the conviction ofcriminal use of a firearm in the first degree in appeal No. 1 should be dismissed as a noninclusoryconcurrent offense of robbery in the first degree also is not properly before us. " 'Article 300deals only with trials, and has no application to convictions obtained on plea of guilty' "(People v Dean, 302 AD2d 951, 952 [2003], quoting People v Walton, 41 NY2d880, 880-881 [1977]).
We note, however, that the certificate of conviction in appeal No. 1 incorrectly reflects thatthe court imposed a sentence of imprisonment of 2 to 7 years for the conviction of unauthorizeduse of a vehicle in the first degree, and it must therefore be amended to reflect that the courtimposed a sentence of imprisonment of 2
We have considered the contentions of defendant in his pro se supplemental brief andconclude that they are without merit. Present—Hurlbutt, J.P., Smith, Fahey, Green andPine, JJ.