| People v Rubeo |
| 2009 NY Slip Op 01888 [60 AD3d 1206] |
| March 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Theresa S.Rubeo, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Mercure, J. Appeals (1) from an order of the County Court of Delaware County (Becker, J.),dated January 22, 2008, which denied defendant's motion to withdraw her plea of guilty, and (2)from a judgment of said court, rendered February 11, 2008, convicting defendant upon her pleaof guilty of two counts of the crime of criminal sale of marihuana in the fourth degree.
Defendant pleaded guilty to two counts of criminal sale of marihuana in the fourth degree infull satisfaction of a superior court information charging her with two counts of criminal sale ofmarihuana in the second degree. As a condition of the plea, defendant waived her right to appeal.At sentencing, she personally requested that County Court permit her to withdraw her plea ofguilty, asserting that she had received ineffective assistance of counsel. The court then assignednew counsel and adjourned sentencing to allow defendant to prepare a formal motion towithdraw, which she thereafter filed. The court denied the motion and sentenced defendant, inaccordance with the plea agreement, to a three-year term of probation and imposed a fine. Thecourt also issued an order of protection prohibiting defendant from having any unsupervisedcontact with children under the age of 18 not related to her within six degrees of consanguinity.Defendant appeals from both the order denying her motion to withdraw her plea of guilty and thejudgment of conviction.[*2]
Initially, we note that "[a]ppeals in criminal cases arestrictly limited to those authorized by statute" (People v Bautista, 7 NY3d 838, 838-839 [2006]; see People v Whalen, 49 AD3d916, 916 [2008], lv denied 10 NY3d 940 [2008]). Inasmuch as an order denying amotion to withdraw a guilty plea does not fall within the provisions of CPL article 450,defendant's appeal from the order denying her motion must be dismissed (see People vRiley, 25 AD2d 915, 916 [1966]). We note, however, that the merits of defendant'schallenges to the denial of her motion are nevertheless reviewable upon her appeal from thejudgment of conviction (see CPL 470.15 [1]).
Turning to the merits, defendant's challenges to the voluntariness of her plea survive herwaiver of the right to appeal and were preserved for our review by her motion to withdraw theplea (see e.g. People v Morrishaw,56 AD3d 895, 896 [2008]). That said, "[w]ithdrawal of a plea will not be permitted in theabsence of 'some evidence or claim of innocence, fraud or mistake in its inducement' "(People v Graham-Harrison, 272 AD2d 780, 781 [2000] [citation omitted]; see People v Griffin, 4 AD3d 674,675 [2004]).
Here, defendant asserts that she should have been permitted to withdraw her plea becauseshe mistakenly believed that she was pleading guilty to two class B misdemeanor charges ofcriminal sale of marihuana in the fifth degree. This argument is belied by the lengthy pleaallocution, which reveals that County Court consistently informed defendant that she waspleading to criminal sale of marihuana in the fourth degree and expressly distinguished the crimefrom that defined in Penal Law § 221.35, i.e., criminal sale of marihuana in the fifthdegree. While notations in the court clerk's minutes of the plea proceeding mislabeled the crimeas a class B misdemeanor, those notations are not consistent with the transcript of the pleaallocution itself. In any event, the intended disposition of three years of probation—towhich defendant agreed—is not a permissible sentence for a class B misdemeanorconviction (see Penal Law § 65.00 [3]; People v Neal, 41 AD3d 971, 972 [2007]). Furthermore, defendantdid not support her claim of mistake with any evidence beyond the clerk's minutes and transcriptof the plea allocution—she did not, for example, submit a sworn statement on her ownbehalf or from her former defense counsel in connection with the motion to withdraw (see People v Williams, 35 AD3d971, 973 [2006], lv denied 8 NY3d 928 [2007]; People v Adams, 31 AD3d 1063, 1065-1066 [2006], lvdenied 7 NY3d 845 [2006]). Finally, we note that the order of protection was not part of thesentence imposed and, thus, County Court's issuance of that order does not entitle defendant towithdraw her plea (see People vHull, 52 AD3d 962, 963-964 [2008]; People v Dixon, 16 AD3d 517, 517 [2005]; see also People v Nieves, 2 NY3d310, 316 [2004]). Under these circumstances, we cannot say that County Court abused itsdiscretion in denying defendant's motion to withdraw her plea.
Defendant's remaining arguments are barred by her waiver of the right to appeal.
Cardona, P.J., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the appeal from theorder dated January 22, 2008 is dismissed. Ordered that the judgment is affirmed.