| People v Moore |
| 2012 NY Slip Op 05344 [97 AD3d 850] |
| July 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SarahMoore, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered October 20, 2010, convicting defendant upon her plea of guilty of the crime of murderin the second degree.
In September 2009, defendant was charged in a 12-count indictment with, among otherthings, various counts of murder, arson, assault and reckless endangerment, all stemming fromallegations that she deliberately set fire to a home and caused, among other things, the death of a10-year-old girl who was trapped inside. Subsequently, a plea agreement was reached wherebydefendant would receive a sentence of 22 years to life for murder in the second degree and aconcurrent sentence of two years for assault in the second degree with the understanding thatdefendant was a first-time felony offender. At the time of the plea colloquy, defendant alsoexpressed satisfaction with her counsel, denied any mental health issues and assured CountyCourt that her prescription migraine medicine did not affect her ability to understand theproceedings. Thereafter, in satisfaction of the indictment and other pending charges, defendantpleaded guilty to one count of murder in the second degree and one count of assault in the seconddegree and waived her right to appeal, both orally and in writing.
It was subsequently learned, however, that defendant had a predicate felony conviction [*2]and, after defendant expressed her wish to withdraw her guilty pleadue to, among other things, issues related to defense counsel, County Court appointed a newattorney to represent her and submit the withdrawal motion. The submitted motion to withdrawwas premised upon the ground that the proposed sentence for assault in the second degree wasillegal based upon defendant's status as a predicate felon, as well as defendant's contention thather former counsel was ineffective because he failed to pursue an affirmative defense based onher belief that she "may have been suffering from a mental disease or defect on the date chargedin the indictment."[FN*]Although County Court initially granted defendant's motion to withdraw the guilty plea as to bothcounts, the court later determined upon reargument that only the guilty plea as to the assaultcount should be withdrawn. The court then dismissed that count. Defendant was thereaftersentenced to 22 to years to life for the murder in the second degree conviction. This appealensued.
Initially, we note that defendant's contention that her plea of guilty to murder in the seconddegree was not voluntarily entered due to her original counsel's failure to pursue a mental diseaseor defect defense survives her waiver of the right to appeal and is preserved for our review on thebasis of her motion to withdraw her plea (see People v Fitzgerald, 56 AD3d 811, 812 [2008]). Nonetheless,defendant's claim that her counsel improperly failed to pursue or advise her of all availableaffirmative defenses is based on facts outside the record and, thus, such a claim is not generallyreviewable on direct appeal (see Peoplev Bodah, 67 AD3d 1195, 1196 [2009], lv denied 14 NY3d 838 [2010]).Although defendant argues that County Court erred by denying her motion to withdraw withoutaffording her a hearing to substantiate her claim (see e.g. People v Fitzgerald, 56 AD3d at813), we note that, here, not only was nothing presented in the course of her plea allocution tosupport this assertion, but, in reviewing her motion to withdraw the plea, County Courtspecifically reserved on the ineffective assistance of counsel portion. The court noted at that timethat the proof before it on this issue was insufficient and directed defendant to submit additionalevidence concerning her alleged "mental condition at the time of the charged crimes within oneweek." Significantly, however, defendant failed to provide any such evidence. Under thesecircumstances and upon this record, we find no basis to conclude that defendant's plea to murderin the second degree was not voluntarily entered, nor that the court abused its discretion indenying her motion to withdraw that plea without a hearing (see People v Phillips, 71 AD3d 1181, 1182-1183 [2010], lvdenied 15 NY3d 755 [2010]).
Spain, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: In her affidavit, defendant statedthat she had advised her former attorney that she had "previously been treated for mental illness,"was examined by psychiatrists at unspecified times, had been diagnosed and treated for bipolardisorder "prior to June 2009" and had sustained a head injury in 2006 for which she neverreceived medical treatment.