| People v Phillips |
| 2008 NY Slip Op 08812 [56 AD3d 1163] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ralph B.Phillips, Appellant. (Appeal No. 1.) |
—[*1] David W. Foley, District Attorney, Mayville (Lynn S. Hodgens of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Chautauqua County (Richard C. Kloch, Sr.,A.J.), rendered December 19, 2006. The judgment convicted defendant, upon his plea of guilty,of aggravated murder and attempted aggravated murder.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of aggravated murder (Penal Law § 125.26 [1] [a] [i]) and attempted aggravated murder(§§ 110.00, 125.26 [1] [a] [i]) in connection with the shooting of two New YorkState troopers. Although defendant preserved for our review his challenge to the factualsufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]), thatchallenge is encompassed by his waiver of the right to appeal (see People v Grimes, 53 AD3d1055, 1056 [2008]). In any event, defendant's challenge is without merit. Defendantadmitted that he knew that the police had set up surveillance at the location where the crimesoccurred; that the weapon he used was "very powerful" and could inflict a fatal wound; and thathe shot the two men. We therefore conclude that the plea allocution is factually sufficient, i.e., itestablishes that defendant intended to kill the victims and that he "knew or reasonably shouldhave known" that they were police officers (§ 125.26 [1] [a] [i]). To the extent thatdefendant challenges the voluntariness of the plea, we reject that challenge. Defendant enteredinto an extensive plea agreement that resolved the instant charges that were pending against himin Supreme Court, Chautauqua County, as well as charges that were pending against him inSupreme Court, Erie County, Chemung County Court, and federal district court, and the pleaagreement also ensured that charges that were pending against members of his family weredismissed.
We further conclude that Supreme Court did not abuse its discretion in denying defendant'smotion to withdraw the plea (seegenerally People v Seeber, 4 NY3d 780 [2005]). "Because nothing that defendant said orfailed to say in [his] allocution negated any elements of the offense[s] to which [he] pleaded. . . or otherwise called into question [his] admitted guilt or the voluntariness of[his] plea, [he] provided [the court] with no basis for allowing the plea's withdrawal" (id.at 781; see People v Thomas, 17AD3d 1047 [2005], lv denied 5 NY3d 770 [2005]). Finally, [*2]the contention of defendant that the court abused its discretion indenying his motion seeking to discharge defense counsel is encompassed by the plea and thewaiver of the right to appeal except to the extent that the contention implicates the voluntarinessof the plea (see People v Williams,6 AD3d 746, 747 [2004], lv denied 3 NY3d 650 [2004]), and that exception does notapply here. In any event, that contention lacks merit. Defendant stated at the time of the plea thathe was satisfied with the services of his attorney, who represented him in connection with thepending charges in all of the respective jurisdictions, and defendant failed to show good cause forsubstitution of counsel (see id. at 747-748). Present—Scudder, P.J., Hurlbutt,Lunn, Green and Gorski, JJ.