| People v Jerome |
| 2012 NY Slip Op 06325 [98 AD3d 1188] |
| September 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Scott Jerome,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered July 20, 2010, convicting defendant upon his plea of guilty of the crime of criminalpossession of marihuana in the first degree.
Defendant pleaded guilty to criminal possession of marihuana in the first degree in fullsatisfaction of an eight-count indictment and waived his right to appeal. The plea agreementprovided that defendant would be sentenced to three years in prison, to be followed by 1½years of postrelease supervision. Prior to sentencing, defendant moved to withdraw his plea onthe ground that his plea was not entered into voluntarily, knowingly or intelligently. CountyCourt denied the motion and thereafter imposed the agreed-upon sentence. Defendant nowappeals.
We affirm. "Whether to allow withdrawal of a guilty plea is left to the sound discretion ofCounty Court, and will generally not be permitted absent some evidence of innocence, fraud ormistake in its inducement" (People vMitchell, 73 AD3d 1346, 1347 [2010], lv denied 15 NY3d 922 [2010] [internalquotation marks and citation omitted]; accord People v Wilson, 92 AD3d 981, 981 [2012]). Here,defendant's contention that he did not understand what he was pleading guilty to or that he was tobe sentenced to three years in prison under the plea agreement is belied by the record. A reviewof the plea colloquy reveals that defendant had previously discussed the plea and itsconsequences with counsel, was fully apprised by County Court of the terms of the [*2]plea agreement and heard and understood the terms prior toentering his plea. Accordingly, we conclude that County Court's denial of defendant's motion wasa sound exercise of its discretion (seePeople v Keating, 96 AD3d 1107, 1108 [2012]; People v Waters, 80 AD3d 1002, 1003 [2011], lv denied 16NY3d 858 [2011]).
We also reject defendant's contention that his waiver of the right to appeal was invalid. Theplea allocution and the written waiver of appeal executed in open court demonstrate thatdefendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Martinez-Velazquez, 89AD3d 1318, 1319 [2011]; People vJean-Francois, 82 AD3d 1366, 1366 [2011], lv denied 17 NY3d 797 [2011]).Defendant's challenge to the sufficiency of his plea and his claim that he received ineffectiveassistance of counsel, which survive his appeal waiver and were preserved by his motion towithdraw his plea (see People vFitzgerald, 56 AD3d 811, 812 [2008]), are nevertheless without merit. The plea minutesreflect that defendant admitted his guilt and affirmatively responded to County Court's inquiriesregarding the elements of the crime. Consequently, we conclude that the allocution was sufficient(see People v Ackley, 84 AD3d1639, 1640 [2011]; People vKaszubinski, 55 AD3d 1133, 1135-1136 [2008], lv denied 12 NY3d 855[2009]). To the extent that defendant claims that he was denied the effective assistance ofcounsel, such claim involves matters outside of the record and is more properly the subject of aCPL article 440 motion (see People vLeszczynski, 96 AD3d 1162, 1163 [2012], lv denied 19 NY3d 998 [2012]). Inany event, the record demonstrates that counsel negotiated a favorable plea and defendantacknowledged during the plea colloquy that he had been provided enough time to discuss theplea with counsel and that he was satisfied with his services (see People v Wilson, 92AD3d at 981-982 [2012]; People v Mitchell, 73 AD3d at 1347).
Peters, P.J., Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.