| People v Elliott |
| 2009 NY Slip Op 03799 [62 AD3d 1098] |
| May 14, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Nancy LynnElliott, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered August 21, 2008, convicting defendant upon her plea of guilty of the crime of falselyreporting an incident in the third degree.
In full satisfaction of an eight-count indictment, defendant entered an Alford plea ofguilty to falsely reporting an incident in the third degree in exchange for a sentence of threeyears of probation and waived her right to appeal. On the day before sentencing was scheduled,defendant moved for an adjournment to allow her an opportunity to confer with new counsel,claiming in an unsworn affidavit that her current counsel had misled her regarding the terms ofher plea and that she had been indirectly threatened into pleading guilty by County Court. Atsentencing, defendant again moved for an adjournment and also moved to withdraw her plea onthe same grounds. County Court denied both motions and sentenced defendant in accordancewith the plea agreement. Defendant now appeals.
We affirm. Initially, we note that the basis of defendant's request for an adjournment andmotion to withdraw her plea relate to the voluntariness of the plea and, therefore, survive herwaiver of the right to appeal (see Peoplev Harrison, 52 AD3d 969, 970 [2008], lv denied 11 NY3d 737 [2008]; People v Wyant, 47 AD3d 1068,1069 [2008], lv denied 10 NY3d 873 [2008]). Turning to the merits, the "granting of anadjournment for any purpose is a matter of [*2]discretion for thetrial court" (People v Singleton, 41 NY2d 402, 405 [1977]; see People vSchnackenberg, 269 AD2d 618, 619 [2000], lv denied 94 NY2d 925 [2000]). Thereis no proof in the record, other than her own unsworn affidavit, supporting defendant's claims ofcoercion. Notably, defendant did not raise this issue during the plea colloquy and indicated thatshe was pleading guilty voluntarily. Accordingly, we find no abuse of discretion in CountyCourt's denial of defendant's request for an adjournment (see People v Grimes, 53 AD3d 1055, 1056 [2008], lvdenied 11 NY3d 789 [2008]).
Regarding defendant's oral motion to withdraw her plea, we note that the only issuespreserved for our review are those raised as the basis for her motion—the allegations ofbeing misled by counsel and indirectly threatened by County Court into pleading guilty (see People v Rogers, 15 AD3d682, 682 [2005]; People v Spulka, 285 AD2d 840, 840 [2001], lv denied 97NY2d 643 [2001]). As there is nothing in the record to support her contentions and our review ofthe plea colloquy reveals that defendant acknowledged the rights she was relinquishing by herplea, that she understood the terms of the plea agreement and that she was entering anAlford plea to avoid facing a prison term, defendant has not established that her plea wasinduced by coercion. Moreover, her allegations concern matters outside the record and are moreproperly the subject of a CPL article 440 motion (see People v Stevenson, 58 AD3d 948,949 [2009]; People v Mosher, 45AD3d 970, 971 [2007], lv denied 10 NY3d 814 [2008]).
Cardona, P.J., Peters, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.