| People v Seuffert |
| 2013 NY Slip Op 01874 [104 AD3d 1021] |
| March 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vPhillip Seuffert, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered July 15, 2010, convicting defendant upon his plea of guilty of thecrime of criminal sexual act in the first degree.
Defendant pleaded guilty to criminal sexual act in the first degree in full satisfactionof a five-count indictment and waived his right to appeal. Prior to sentencing, he movedto withdraw his plea, arguing that he was coerced into pleading guilty. County Courtdenied the motion and thereafter sentenced defendant to eight years in prison to befollowed by five years of postrelease supervision. Defendant now appeals.
We affirm. Initially, to the extent that defendant challenges his waiver of the right toappeal, inasmuch as our review of the plea colloquy and defendant's written waiverreveal that defendant was advised of and understood the rights that he was forfeiting, weare satisfied that he knowingly, voluntarily and intelligently waived the right to appealhis conviction and sentence (seePeople v Griffin, 100 AD3d 1153, 1153-1154 [2012], lv denied 20NY3d 1011 [2013]; People vLopez, 97 AD3d 853, 853 [2012], lv denied 19 NY3d 1027 [2012]).
With respect to defendant's plea, "[w]hether to allow withdrawal of a guilty plea isleft to the sound discretion of County Court, and will generally not be permitted absentsome [*2]evidence of innocence, fraud or mistake in itsinducement" (People vMitchell, 73 AD3d 1346, 1347 [2010], lv denied 15 NY3d 922 [2010][internal quotation marks and citation omitted]; accord People v Jerome, 98 AD3d 1188, 1188 [2012],lv denied 20 NY3d 987 [2012]). In his motion to withdraw his plea, defendantcontended that he agreed to plead guilty in exchange for a sentence of eight years inprison after he panicked when County Court advised him that he could be sentenced to asmuch as 25 years in prison if convicted of the crime of criminal sexual act in the firstdegree. The fact that County Court informed defendant of the potential maximumsentence to which he was exposed does not constitute coercion to induce a guilty plea orrender his plea involuntary (seePeople v Taylor, 82 AD3d 1291, 1292 [2011], lv denied 16 NY3d 900[2011]; People v Lambe, 282 AD2d 776, 777 [2001]). Accordingly, CountyCourt's denial of defendant's motion was not an abuse of discretion.
Although defendant argues on appeal that he was coerced into pleading guilty bycertain misstatements made by County Court regarding the potential sentence he wasexposed to under the indictment,[FN*]inasmuch as he did not raise this issue in his motion to withdraw the plea, the issue is notpreserved for our review (seePeople v Young, 81 AD3d 995, 996 [2011], lv denied 16 NY3d 901[2011]). Further, the narrow exception to the preservation rule is not applicable here, asdefendant did not make any statements during the plea colloquy that cast doubt upon hisguilt or negated an essential element of the crime (see People v Morgan, 84 AD3d 1594, 1594 [2011], lvdenied 17 NY3d 819 [2011]).
To the extent that defendant's contention that he received ineffective assistance ofcounsel is preserved for our review, it is without merit inasmuch as he " 'receive[d] anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness ofcounsel' " (People vSingletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741[2008], quoting People v Ford, 86 NY2d 397, 404 [1995]; accord People v Gazivoda, 68AD3d 1346, 1347 [2009], lv denied 14 NY3d 840 [2010]). Finally, in lightof defendant's valid waiver of the right to appeal his conviction and sentence, his claimthat his sentence is harsh and excessive is precluded (see People v Anderson, 99 AD3d 1034, 1035 [2012], lvdenied 20 NY3d 1009 [2013]; People v Lopez, 97 AD3d at 853-854).
Mercure, J.P., Rose and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: It is impossible to tell,from this record, whether County Court's calculation of the possible sentencingparameters was accurate or erroneous.