| People v Jones |
| 2010 NY Slip Op 02617 [71 AD3d 1573] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Pierre Jones,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedMay 2, 2007. The judgment convicted defendant, upon his plea of guilty, of assault in the seconddegree.
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 ofassault in the second degree (Penal Law § 120.05 [2]). Contrary to the contentions ofdefendant, we conclude that his waiver of the right to appeal is valid (see People vLopez, 6 NY3d 248, 256 [2006]), and that it is not void as against public policy (seePeople v Muniz, 91 NY2d 570, 573-575 [1998]; People v Kapp, 59 AD3d 974,974-975 [2009], lv denied 12 NY3d 818 [2009]). The challenge by defendant to thefactual sufficiency of the plea allocution is encompassed by his valid waiver of the right toappeal (see People v Grimes, 53 AD3d 1055, 1056 [2008], lv denied 11 NY3d789 [2008]) and, in any event, that challenge is unpreserved for our review because defendantdid not move to withdraw the plea on that ground (see People v Lopez, 71 NY2d 662,665 [1988]). In support of his motion to withdraw his plea at the time of sentencing, defendantcontended that his plea was involuntary because it was coerced by County Court and he feltpressured into entering a plea. That contention, however, is belied by the record of the pleaproceeding, and we thus reject the contention of defendant that the court abused its discretion indenying his motion to withdraw his plea. The fact that the court reminded defendant that the jurywas waiting downstairs during the plea proceeding does not constitute coercion, nor does itrender the plea involuntary (see Grimes, 53 AD3d at 1056). Indeed, in support of hismotion, defendant presented no evidence of innocence, fraud, or mistake in the inducement ofthe plea (see People v Thomas, 17 AD3d 1047 [2005], lv denied 5 NY3d 770[2005]). The statement of defendant that he was "under a lot of stress" at the time of the pleadoes not, by itself, warrant granting his motion to withdraw the plea (see People vRobinson, 301 AD2d 745, 746-747 [2003], lv denied 100 NY2d 542 [2003];People v Merck, 242 AD2d 792, 793 [1997], lv denied 91 NY2d 895 [1998]).Present—Scudder, P.J., Peradotto, Lindley and Gorski, JJ.