| People v Smith |
| 2010 NY Slip Op 07627 [77 AD3d 1189] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Trevell J.Smith, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered June 23, 2009, convicting defendant upon his plea of guilty of the crime of burglary inthe second degree.
Defendant pleaded guilty to burglary in the second degree in full satisfaction of a three-countindictment, pursuant to a plea agreement that included a waiver of the right to appeal. He wassentenced to a prison term of eight years, to be followed by five years of postrelease supervision,and ordered to pay restitution. Defendant now appeals.
We affirm. Initially, although defendant challenges the validity of his appeal waiver, hisclaim that his plea was not knowingly, intelligently or voluntarily entered survives any waiver ofthe right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Volfson, 69 AD3d 1123,1124 [2010]). Specifically, defendant contends that his plea was not knowingly entered due to hisalleged confusion as to how his sentence for this crime would run with respect to a pendingsentence for unrelated crimes in Rensselaer County Court. We disagree. Our review of the recorddiscloses that defendant understood that he was to receive a sentence of eight years in prison, tobe followed by five years of postrelease supervision, for this conviction in Albany County.County Court further noted that it had been informed by defense counsel that there was anagreement that the pending sentence in Rensselaer County would be imposed so as to run [*2]concurrently with the sentence imposed under this conviction.Inasmuch as Albany County Court subsequently imposed the agreed-upon sentence and therecord reflects that defendant understood the nature and consequences of the plea, including therights he was relinquishing, and freely admitted his guilt, we are satisfied that defendant's pleawas knowingly, voluntarily and intelligently entered (see People v Creech, 56 AD3d 899, 900 [2008], lv denied12 NY3d 815 [2009]; People vStokely, 49 AD3d 966, 967 [2008]).
Defendant further argues that County Court should have allowed him to withdraw his plea,which also would survive any appeal waiver (see People v Mitchell, 73 AD3d 1346, 1347 [2010]). However,"[w]here a defendant has been fully informed of the rights he is waiving by pleading guilty andproceeds to admit the facts constituting the crime, a subsequent protestation of innocence whichis not substantiated by any evidence is generally insufficient to support a request for vacatur ofthe plea" (People v Paulk, 142 AD2d 754, 754 [1988], lv dismissed 72 NY2d 960[1988]; accord People v Thomas, 25AD3d 879, 880 [2006], lv denied 6 NY3d 853 [2006]). Here, defendant's request tovacate his plea was based solely on conclusory and unsupported claims of innocence whichcontradict his sworn plea admissions. Thus, County Court properly rejected it.
Finally, contrary to defendant's contention, the record reveals that he validly waived his rightto appeal (see People v Lopez, 6NY3d 248, 256 [2006]; People vGomez, 50 AD3d 1391, 1391 [2008], lv denied 11 NY3d 736 [2008]).
Peters, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.