| People v Good |
| 2011 NY Slip Op 02751 [83 AD3d 1124] |
| April 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Moses A.Good, Appellant. |
—[*1] Christopher I. Simser, Special Prosecutor, Cortland, for respondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered December 18, 2009, convicting defendant upon his plea of guilty of the crime of sexualabuse in the first degree.
In November 2006, defendant was charged with sexual abuse in the first degree and thirddegree and endangering the welfare of a child based upon allegations that he subjected a15-year-old girl to forcible sexual contact. On defendant's previous appeal, we reversed thejudgment of conviction entered upon his plea to sexual abuse in the first degree due to a violationof his right to counsel (People vGood, 62 AD3d 1041 [2009]). The plea was vacated and, upon remittal, defendant againpleaded guilty to that top count of the indictment and purportedly signed a written waiver ofappeal. Sentenced to the agreed-upon prison term of three years, followed by five years ofpostrelease supervision, defendant now appeals, and we affirm.
Initially, we agree that defendant, who counsel reported is illiterate, did not effectively waivehis right to appeal (see People vLopez, 6 NY3d 248, 256-257 [2006]; People v Callahan, 80 NY2d 273, 280[1992]). The record contains a totally deficient "WAIVER OF APPEAL" document bearing whatappears to be defendant's signature. Moreover, the plea colloquy does not reflect that CountyCourt made up for the shortcomings of the document by explaining to defendant the nature of hisright to appeal, or that defendant discussed giving up his right to appeal with counsel orotherwise understood its meaning or consequences, and the cursory [*2]document contains no such acknowledgments or information (see People v Mosher, 45 AD3d970, 970 [2007], lv denied 10 NY3d 814 [2008]; cf. People v McCaskill, 76 AD3d 751, 752 [2010]).
We next conclude that defendant's challenge to the voluntary, knowing and intelligent natureof his guilty plea was not preserved for our review as he did not move to withdraw his plea or tovacate the judgment of conviction (seePeople v Cerone, 75 AD3d 835, 835-836 [2010], lv denied 15 NY3d 850[2010]). Contrary to defendant's claims, he did not make statements that cast doubt upon hisguilt, negated an element of the crime or called into question the voluntariness of his plea so as totrigger the exception to the preservation requirement (see People v Lopez, 71 NY2d 662,666 [1988]). That defendant was conflicted and felt pressured to plead guilty—i.e., toaccept or reject the plea bargain—amounts to nothing more than "situational coercion"(People v Seaberg, 74 NY2d 1, 8 [1989] [internal quotation marks omitted]; accord People v Buskey, 62 AD3d1164, 1165 [2009]) which did not render his plea involuntary. After his initial hesitancy, thecourt refused to accept his plea until he unequivocally expressed a desire to enter a guilty pleaand admitted that he was guilty of the charged conduct (see People v Bridge, 71 AD3d 1197, 1198 [2010]). In any event,the record fully supports the conclusion that defendant's guilty plea was knowing, voluntary andintelligent, as defendant was advised of his rights and the consequences of his plea, denied beingcoerced and admitted having had an adequate opportunity to confer with counsel.
We reject defendant's assertion that he should have been afforded an opportunity to withdrawthis guilty plea because of certain post-plea motions and statements he claims to have made. Therecord contains no such motions or statements, oral or written. Defendant himself confirmed atsentencing his wish to proceed upon his guilty plea and did not make any statements atsentencing casting doubt on the voluntariness of his plea or his guilt; thus, there is no basis forthe claim that County Court should have sua sponte offered him the opportunity to withdraw hisplea or any other option (see People vWagoner, 30 AD3d 629, 630 [2006]). Defendant's statement that he was not with thevictim on a particular day in October 2006 was irrelevant because that date was not the date ofthe crimes charged in the indictment, and the court had no duty of further inquiry (see People v Vallance, 49 AD3d917, 917 [2008], lv denied 10 NY3d 845 [2008]).
Finally, given that defendant received an advantageous plea deal and nothing in the recordcasts doubt on trial counsel's effectiveness, we find that he received meaningful representation(see People v Ford, 86 NY2d 397, 404 [1995]; People v Lee, 51 AD3d 1217, 1217-1218 [2008]). The recordreveals that defendant never indicated a desire to withdraw his plea nor did he request thatcounsel so move, and we discern nothing to suggest that counsel should have done so.Defendant's claims that counsel failed to investigate his case and was not prepared to go to trialare outside the record and more properly the subject of a CPL article 440 motion (see People v Sterling, 57 AD3d1110, 1113 [2008], lv denied 12 NY3d 788 [2009]). Additionally, the record doesnot support the allegations, raised for the first time on appeal, that County Court was biasedagainst him and should have recused itself from the case, or that counsel was ineffective forfailing to request this relief (see Peoplev Rizzo, 5 AD3d 924, 925 [2004], lv denied 3 NY3d 646 [2004]). Additionally,the court's discretionary denial of defendant's pre-plea request to be released on his ownrecognizance, without bail, was not indicative of bias and the claim that recusal was required isunfounded (see CPL 510.30, 530.10, 530.20 [2]; People v Maxam, 301 AD2d791, 793 [2003], lv denied 99 NY2d 617 [2003]).[*3]
A review of defendant's other appellate argumentsdiscloses that none is meritorious.
Peters, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.