| People v Carbone |
| 2012 NY Slip Op 08569 [101 AD3d 1232] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Richard M.Carbone, Appellant. |
—[*1] Richard D. Northrup Jr., Delhi (John L. Hubbard of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Delaware County (Becker, J.),rendered March 16, 2009, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the second degree.
In June 2008, while returning from a weekend visit to New York City, defendant and hisgirlfriend were stopped for speeding in the Town of Deposit, Delaware County. Uponapproaching defendant's pickup truck, a trooper detected a strong odor of marihuana; whenquestioned, defendant's girlfriend, who was driving, admitted that marihuana was present in thevehicle. A subsequent search of that vehicle yielded approximately one pound of marihuana andapproximately eight ounces of cocaine, which defendant, in turn, admitted he had purchasedwhile in New York City. As a result, defendant was indicted and charged with criminalpossession of a controlled substance in the first degree and criminal possession of marihuana inthe second degree.
In full satisfaction of the foregoing indictment, defendant subsequently pleaded guilty tocriminal possession of a controlled substance in the second degree, waived his right to appeal andagreed to, among other things, forfeiture of the vehicle and the cash contained therein. Prior tosentencing, defendant moved to withdraw his plea, contending that his plea was coerced and thathe was denied the effective assistance of counsel. After hearing oral argument, County Courtdenied defendant's motion and sentenced him to the agreed-upon term of five years in prison[*2]followed by five years of postrelease supervision. Defendantnow appeals.
We affirm. As a starting point, our review of the record reveals that defendant's waiver of theright to appeal was knowing, intelligent and voluntary. County Court explained the significanceof the appeal waiver to defendant, and defendant confirmed his understanding thereof (see People v Santana, 95 AD3d1503, 1503 [2012]) and executed a written waiver of the right to appeal (see People v Tolliver, 92 AD3d1024, 1024 [2012]; People vMoreno, 86 AD3d 863, 864 [2011], lv denied 17 NY3d 954 [2011]). Althoughdefendant now claims that his visual impairment calls into question the validity of his writtenwaiver, the record reflects that County Court went to great lengths to orally explain the natureand consequences of the waiver to him. Accordingly, defendant's valid waiver of appealprecludes his present claim of judicial bias (see People v Irvis, 90 AD3d 1302, 1303 [2011], lv denied19 NY3d 962 [2012], citing People vWhite, 81 AD3d 1039, 1039 [2011]), as well as his challenge to the consensualforfeiture of the vehicle used to transport the drugs and the cash contained therein (see Peoplev Sczepankowski, 293 AD2d 212, 214-215 [2002], lv denied 99 NY2d 564 [2002];see generally People v Abruzzese,30 AD3d 219, 220 [2006], lv denied 7 NY3d 784 [2006]).
Turning to the merits, defendant's challenge to the voluntariness of his plea survives hiswaiver of appeal and, further, has been preserved for our review in light of his subsequent motionto withdraw (see People v Ortiz, 69AD3d 966, 967 [2010]); nonetheless, we find his various arguments on this point to belacking in merit. The record reflects that defendant was advised of the charges against him andthe rights he would be forfeiting, professed his understanding thereof, indicated that he had beenafforded sufficient time to confer with counsel and was satisfied with counsel's services, deniedbeing under the influence of any substances that would impair his thinking and stated that he wasentering into the plea of his own free will. Under these circumstances, we find that defendant'sguilty plea was knowing, intelligent and voluntary (see People v White, 85 AD3d 1493, 1493-1494 [2011]; People v Shurock, 83 AD3d 1342,1343 [2011]; People v First, 62AD3d 1043, 1044 [2009], lv denied 12 NY3d 915 [2009]; People v Morrishaw, 56 AD3d895, 896 [2008], lv denied 12 NY3d 761 [2009]), and our conclusion in this regardis in no way undermined by defendant's baseless assertions that his plea was coerced and that hedid not understand the nature of the proceedings.[FN*] Further, in light of the extensive [*3]oral plea colloquy, we findno merit to defendant's claim that County Court failed to accommodate his visual impairment orthat such impairment implicated the voluntariness of his plea. Finally, County Court misspokewhen it accepted defendant's plea—stating that defendant was pleading guilty to criminalsale of a controlled substance in the second degree instead of criminal possession of a controlledsubstance in the second degree. It is clear from a review of the underlying colloquy, however,that "defendant pleaded guilty to the appropriate crime and was sentenced accordingly"(People v Martinez, 243 AD2d 923, 925 [1997]).
Defendant's claim that County Court abused its discretion in denying his motion to withdrawhis plea without a hearing is equally unavailing. "The decision to permit withdrawal of a guiltyplea is a matter within the trial court's sound discretion, and a hearing is required only where therecord presents a genuine question of fact as to its voluntariness" (People v Shurock, 83AD3d at 1343 [internal quotation marks and citations omitted]; accord People v Moreno,86 AD3d at 864; see People vCopeman, 77 AD3d 1187, 1188 [2010]).
Here, defendant's motion primarily centered around a claim of ineffective assistance ofcounsel—an argument that survives defendant's valid appeal waiver only to the extent thatit impacts upon the voluntariness of his plea (see People v Speranza, 96 AD3d 1164, 1165 [2012]; People v Jimenez, 96 AD3d 1109,1110 [2012]). To the extent that defendant asserts that his various attorneys pressured him toplead guilty and failed to properly investigate his case, demand certain hearings and reviewand/or request an updated presentence investigation report, such issues involve matters outsidethe record and, accordingly, are more properly entertained in the context of a CPL article 440motion (see People v Wilson, 92AD3d 981, 981-982 [2012], lv denied 19 NY3d 1029 [2012]). Moreover, pleacounsel negotiated a very advantageous plea agreement and succeeded in securing a sentencingcommitment that was far less than the maximum, and defendant acknowledged that he hadconferred with counsel prior to entering his plea and, more to the point, was satisfied withcounsel's services. Under these circumstances, we conclude that defendant was affordedmeaningful representation during the course of his plea (see People v Moreno, 86 AD3dat 865; People v Shurock, 83 AD3d at 1344; People v Singletary, 51 AD3d 1334, 1335 [2008], lv denied11 NY3d 741 [2008]; see also People vIldefonso, 89 AD3d 1327, 1327-1328 [2011]). Accordingly, defendant's motion towithdraw was properly denied.
As to the balance of defendant's ineffective assistance of counsel claim, it is well settled thatthe failure to make a particular pretrial motion or request a particular pretrial hearing does notnecessarily constitute ineffective assistance of counsel per se (see People v Bailey, 80 AD3d 999, 1000 [2011], lv denied18 NY3d 856 [2011]; People vGentry, 73 AD3d 1383, 1384 [2010]) and, based upon our review of the record as awhole, we are satisfied that defendant's various attorneys provided meaningful representation.Defendant's remaining contentions, including his assertion that the legal standard employed inreviewing a motion to withdraw a guilty plea is unconstitutional, have been examined and foundto be lacking in merit.
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: During the plea colloquy,defendant was asked whether there was any reason why he could not understand the nature of theproceedings, and he responded, without elaboration, "Yeah." Although County Court did notclarify this response, the allocution as a whole plainly reveals—based upon defendant'saffirmative responses to County Court's inquiries—that he understood the nature andconsequences of his plea and, further, was in the "proper frame of mind" to voluntarily enter aplea of guilty (cf. People v Amidon,79 AD3d 1158, 1159 [2010], lv denied 16 NY3d 741 [2011]; see People v Vallee, 97 AD3d 972,974 [2012] ["defendant's plea allocution demonstrate(d) his full comprehension of the terms ofhis guilty plea"] [internal quotation marks and citation omitted]). Accordingly, defendant'sbelated and unsubstantiated claims of confusion or coercion are insufficient to warrant vacatur ofhis plea (see People v Miranda, 67AD3d 709, 710 [2009]; People vBowman, 34 AD3d 935, 937 [2006], lv denied 8 NY3d 844 [2007]; People v Vazquez, 34 AD3d 855,855 [2006], lv denied 8 NY3d 850 [2007]).