| People v Campbell |
| 2009 NY Slip Op 03579 [62 AD3d 1265] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shawn M.Campbell, Appellant. |
—[*1] John C. Tunney, District Attorney, Bath (Brooks T. Baker of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedMarch 24, 2006. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree (two counts), burglary in the first degree (two counts) and grand larceny in thefourth degree (two counts).
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 guiltyof, inter alia, two counts of murder in the second degree (Penal Law § 125.25 [1], [3]). Weagree with defendant that his waiver of the right to appeal is invalid because neither the writtenplea agreement nor the plea colloquy established that defendant understood the distinctionbetween the right to appeal and the trial rights he forfeited by pleading guilty (see People v Moyett, 7 NY3d 892,893 [2006]; People v Williams, 59AD3d 339, 341 [2009]; People vElcine, 43 AD3d 1176, 1177 [2007]). The further contention of defendant that he wasdenied effective assistance of counsel therefore survives the invalid waiver of the right to appeal(see People v D'Agostino, 55 AD3d353 [2008], lv denied 11 NY3d 924 [2009]; People v Stokely, 49 AD3d 966, 968 [2008]), and it survives theplea to the extent that defendant contends that the plea was infected by the alleged ineffectiveassistance of counsel (see People vGimenez, 59 AD3d 1088 [2009]). We nevertheless conclude that defendant's contentionlacks merit (see generally People v Ford, 86 NY2d 397, 404 [1995]). To the extent thatdefendant contends that defense counsel was ineffective because he coerced defendant intopleading guilty, that contention is belied by defendant's statement during the plea colloquy thatthe plea was not the result of any threats, pressure or coercion (see People v McKoy, 60 AD3d1374 [2009]; People vSingletary, 51 AD3d 1334 [2008], lv denied 11 NY3d 741 [2008]; People v Gedin, 46 AD3d 701[2007], lv denied 10 NY3d 840 [2008]). Further, defendant failed to" 'demonstrate the absence of strategic or other legitimate explanations' " for defense counsel'sfailure to pursue an extreme emotional disturbance defense and to request a mental competencyexamination (People v Benevento, 91 NY2d 708, 712 [1998]). In any event, the recorddoes not support an extreme emotional disturbance defense, nor does it support the need for amental competency examination.
We further conclude that County Court did not abuse its discretion in denying defendant'smotion to withdraw the plea on the ground of coercion without conducting a hearing inasmuch as[*2]the record is devoid of "a genuine question of fact as to theplea's voluntariness" (Singletary, 51 AD3d at 1334; see Gedin, 46 AD3d 701[2007]). Present—Scudder, P.J., Martoche, Fahey, Peradotto and Green, JJ.