| People v Wolf |
| 2011 NY Slip Op 07095 [88 AD3d 1266] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jennifer R.Wolf, Also Known as Jennifer R. Wolfe, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedSeptember 27, 2010. The judgment convicted defendant, upon her plea of guilty, of attemptedpromoting prison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty ofattempted promoting prison contraband in the first degree (Penal Law §§ 110.00,205.25 [1]), defendant contends that her waiver of the right to appeal was invalid. We reject thatcontention. Despite defendant's contention to the contrary, the record "establish[es] that [she]understood that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (Peoplev Lopez, 6 NY3d 248, 256 [2006]; see People v McKeon, 78 AD3d 1617 [2010], lv denied 16NY3d 799 [2011]). Defendant further contends that County Court abused its discretion indenying her motion to withdraw the guilty plea on the ground that the plea was not knowing,voluntary or intelligent. Although defendant's contention survives her valid waiver of the right toappeal (see People v Sparcino, 78AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]), it is without merit."Permission to withdraw a guilty plea rests solely within the court's discretion . . . ,and refusal to permit withdrawal does not constitute an abuse of that discretion unless there issome evidence of innocence, fraud, or mistake in inducing the plea" (People v Robertson,255 AD2d 968 [1998], lv denied 92 NY2d 1053 [1999]). Here, defendant failed tosubmit her own affidavit, let alone any medical evidence, to substantiate her claim in support ofher motion that her mental illness precluded her from entering a voluntary plea (see People v Ashley, 71 AD3d1286, 1287 [2010], affd 16 NY3d 725 [2011]; People v Ramos, 77 AD3d 773, 774 [2010], lv denied 16NY3d 835 [2011]). Further, "[d]efendant's contention is belied by the record of the pleaproceeding, which establishes that [her] factual allocution was lucid and detailed and thatdefendant understood both the nature of the proceedings and that [s]he was waiving variousrights" (People v Hayes, 39 AD3d1173, 1175 [2007], lv denied 9 NY3d 923 [2007]). Defendant responded to thecourt's questions in a clear manner, repeatedly confirmed that she understood the proceedings,and declined opportunities to speak with her attorney. Thus, "nothing in the record of the pleaproceeding establishes that defendant's alleged mental illness 'so stripped [defendant] oforientation or cognition that [s]he lacked the capacity to plead guilty' " (People v Young, 66 AD3d 1445,1446 [2009], lv denied 13 NY3d [*2]912 [2009], quotingPeople v Alexander, 97 NY2d 482, 486 [2002]).
Defendant's further contention that her plea was coerced because the People informeddefense counsel that they would pursue additional charges against defendant if she rejected theplea offer is "belied by [her] statement during the plea proceeding that [she] was not threatened,coerced or otherwise influenced against [her] will into pleading guilty" (People v Irvine, 42 AD3d 949, 949[2007], lv denied 9 NY3d 962 [2007] [internal quotation marks omitted]). In any event,"[t]he fact that the possibility of [additional charges] may have influenced defendant's decision toplead guilty is insufficient to establish that the plea was coerced" (People v Hobby, 83 AD3d 1536,1536 [2011]; see People v Coppaway, 281 AD2d 754 [2001]). Nor does "the fact thatdefendant was required to accept or reject the plea offer within a short time period. . . amount to coercion" (People v Mason, 56 AD3d 1201, 1202 [2008], lv denied 11NY3d 927 [2009] [internal quotation marks omitted]).
Contrary to defendant's further contention, we conclude that the court did not err in failing toconduct an evidentiary hearing on her motion to withdraw her guilty plea. During the lengthy oralarguments on the motion, the court afforded defense counsel the opportunity to set forth each ofhis arguments in support of withdrawal. Defendant was thus "afforded . . . therequisite 'reasonable opportunity to present h[er] contentions' in support of that motion" (People v Strasser, 83 AD3d 1411,1411 [2011], quoting People v Tinsley, 35 NY2d 926, 927 [1974]; see Irvine, 42AD3d at 949). Further, although defense counsel asserted the attorney-client privilege inresponse to certain questions by the court, the court was not required to appoint new counsel torepresent defendant on the motion inasmuch as defense counsel "did not take an adverse positionto defendant" or become a witness against her (People v Milazo, 33 AD3d 1060, 1061 [2006], lv denied 8NY3d 883 [2007]; see People vMcKoy, 60 AD3d 1374, 1374-1375 [2009], lv denied 12 NY3d 856 [2009]; cf. People v Kirkland, 68 AD3d1794, 1795 [2009]).
Finally, defendant contends that the drugs in question that were brought into the prison donot constitute "dangerous contraband" pursuant to Penal Law § 205.25 (1). To the extentthat her contention may be deemed to be a jurisdictional challenge to the indictment that survivesher valid waiver of the right to appeal (see People v Hernandez, 63 AD3d 1615 [2009], lv denied13 NY3d 745 [2009]), we reject that contention. The indictment alleges that defendant"committed acts constituting every material element of the crime charged" (People vIannone, 45 NY2d 589, 600 [1978]), and the indictment therefore is not jurisdictionallydefective (see id. at 600-601; cf.People v Hines, 84 AD3d 1591, 1591-1592 [2011]; People v Reeves, 78 AD3d 1332 [2010], lv denied 16NY3d 835 [2011]; People vHurell-Harring, 66 AD3d 1126, 1127-1128 [2009]). Present—Smith, J.P., Fahey,Peradotto, Lindley and Sconiers, JJ.