| People v Moreno |
| 2011 NY Slip Op 06044 [86 AD3d 863] |
| July 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RamonMoreno, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 21,2008 in Albany County, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the first degree.
Defendant was charged in a three-count indictment for crimes committed when he allegedlyparticipated with another individual in the theft of money from a motel in Albany County duringwhich a motel employee was threatened with a knife and tied up. After rejecting initial pleaoffers, defendant eventually agreed to plead guilty to one count of attempted robbery in the firstdegree in satisfaction of all charges and in exchange for an agreed sentence of six years in prisonwith five years of postrelease supervision. As part of the plea agreement, defendant waived hisright to appeal. Shortly before sentencing, defendant moved to withdraw his guilty plea. SupremeCourt denied his motion without a hearing and sentenced him in accordance with the pleaagreement. Defendant appeals.
We affirm. Initially, we consider whether defendant knowingly, voluntarily and intelligentlywaived his right to appeal. Supreme Court adequately explained to defendant that his right toappeal was separate from rights automatically forfeited upon pleading guilty. Defendantacknowledged that he had discussed the waiver of appeal with his attorney, he understood theconsequences of the waiver, he verbally waived such right on the record and then [*2]executed a written appeal waiver. The appeal waiver is valid (see People v Wicks, 83 AD3d1223, 1224 [2011]; People vThomas, 71 AD3d 1231, 1231-1232 [2010], lv denied 14 NY3d 893 [2010]).Defendant's appeal waiver precludes his current challenge to Supreme Court's denial of hissuppression motion (see People vPassino, 25 AD3d 817, 818 [2006], lv denied 6 NY3d 816 [2006]; People v Carroll, 21 AD3d 586,586 [2005]), as well as his contention that the sentence was harsh and excessive (see People v Scitz, 67 AD3d 1251,1252 [2009]).
Defendant's contention that his motion to withdraw his plea should have been grantedsurvives his appeal waiver (see People vSmith, 77 AD3d 1189, 1190 [2010]). However, "[t]he decision to permit withdrawal ofa guilty plea is a matter within the trial court's sound discretion, and a hearing is required onlywhere the record presents a genuine question of fact as to its voluntariness" (People v Russell, 79 AD3d 1530,1530-1531 [2010] [internal quotation marks and citations omitted]). Defendant's attempt towithdraw his plea appears to have been based upon his learning that the other participant in thecrime received a less severe sentence. This fact does not establish a right to withdraw a plea.Defendant failed to submit evidence indicating that he did not commit the crime to which hepleaded guilty. The plea allocution established that defendant was fully apprised of the deal hewas receiving, he indicated that he understood the terms of the deal and he related his willingnessto enter into the agreement.
With respect to his further assertion in a letter to Supreme Court that his counsel wasineffective, such statement is at odds with his statement on the record that he was satisfied withhis counsel. Moreover, we have recently observed that " '[i]n the context of a guilty plea, adefendant has been afforded meaningful representation when he or she receives an advantageousplea and nothing in the record casts doubt on the apparent effectiveness of counsel' " (People v Shurock, 83 AD3d 1342,1344 [2011], quoting People vSingletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741 [2008]). Here,counsel negotiated a favorable deal that significantly reduced defendant's potential prisonsentence. We are unpersuaded that Supreme Court abused its discretion in denying defendant'smotion to withdraw his plea (see People v Singletary, 51 AD3d at 1335).
Peters, J.P., Rose and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.