| People v Morey |
| 2013 NY Slip Op 07086 [110 AD3d 1378] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnMorey, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel),respondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered April 3, 2012, convicting defendant upon his plea of guilty of the crime ofrape in the third degree.
In March 2011, defendant, represented by retained counsel, executed a waiver ofindictment and entered a guilty plea to a superior court information (hereinafter SCI)charging him with rape in the third degree, admitting the allegation that he had sexualintercourse with a female who was under age 17. Pursuant to the plea agreement,defendant waived his right to appeal and was promised a split sentence of six months injail and 10 years of probation. Defendant subsequently moved pro se to withdraw hisguilty plea; thereafter, County Court granted retained counsel's motion to be relieved andassigned the Public Defender, who also moved to withdraw the plea, based upondefendant's contention that his plea had been coerced and that he was not guilty. Afterrepeated adjournments, the court denied defendant's motion to withdraw his guilty pleaand imposed the agreed-upon sentence. Defendant now appeals.
Upon review of the record, we find that, contrary to defendant's claim, his guilty pleaand waiver of appeal were knowingly, voluntarily and intelligently entered (see People v Brown, 14 NY3d113, 116 [2010]; People vHill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048[*2][2008]; People v Lopez, 6 NY3d 248, 256 [2006]). County Courtclearly outlined the terms of the plea agreement, explained the trial-related rights thatdefendant would be foregoing if he were to enter a guilty plea and elicited defendant'sunderstanding of the consequences of a guilty plea; defendant indicated he had not beencoerced, and the court confirmed that defendant had discussed the proof and possibledefenses with counsel and was entering a plea because he was, in fact, guilty of thecharged conduct. Defendant then admitted the recited allegations contained in the SCI.The court separately explained the right to appeal and distinguished it from the otherrights that defendant was foregoing as a consequence of his plea, and defendantconfirmed his understanding thereof and, after reviewing the written appeal waiver withcounsel, signed it in open court (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]).The foregoing amply established the validity of defendant's guilty plea and appeal waiverand the court properly denied defendant's motion to withdraw his plea (see id.; People v Galvan, 107 AD3d1058, 1058-1059 [2013], lv denied 21 NY3d 1042 [2013]; People v Martin, 105 AD3d1266, 1267 [2013]).
Defendant's contention that his plea was involuntary—while surviving hisvalid appeal waiver (see Peoplev Revette, 102 AD3d 1065, 1065 [2013]) and preserved by his motion towithdraw his guilty plea (seePeople v Wyant, 47 AD3d 1068, 1069 [2008], lv denied 10 NY3d 873[2008])—is belied by the record before us. His claim to feeling pressured to acceptthe plea agreement amounts to the type of "situational coercion" faced by manydefendants offered a plea deal, and it does not undermine the voluntariness of his guiltyplea or appeal waiver (People v Seaberg, 74 NY2d 1, 8 [1989] [internalquotation marks and citation omitted]; see People v Good, 83 AD3d 1124, 1125 [2011], lvdenied 17 NY3d 816 [2011]). His challenges to the factual sufficiency of the pleacolloquy and to the severity of the agreed-upon sentence are foreclosed by his validappeal waiver (see People v Lopez, 6 NY3d at 255-256; People v Stokely, 49 AD3d966, 968 [2008]). Moreover, defendant specifically indicated during the pleacolloquy that he understood and had discussed with counsel the possible pretrialhearings, and expressly waived issues pertaining to any motions that counsel had made orcould make. This, along with his valid appeal waiver, effectively waived his presentclaim that a Huntley hearing should have been held to determine the admissibilityof his statements to police, which are not contained in the record on appeal (see People v Morrison, 106AD3d 1201, 1201-1202 [2013]; see also People v Fernandez, 67 NY2d 686,688 [1986]).
To the extent that defendant makes arguments regarding what his retained counseladvised him, what counsel investigated or prepared, and whether counsel pressured orcoerced him, they are unsupported or contradicted by the record and, in part, concernmatters outside the record and, as such, are more properly raised in a CPL article 440motion to vacate the judgment (see People v Willi, 80 AD3d 884, 885 [2011], lvdenied 16 NY3d 900 [2011]). Finally, defendant's valid appeal waiver precludes hisclaim that his counsel at the time he entered the guilty plea was ineffective, exceptinsofar as such claim impacts the voluntariness of his plea (see People v Leigh, 71 AD3d1288, 1288 [2010], lv denied 15 NY3d 775 [2010]). Defendant's claim onappeal that counsel failed to make pretrial rulings does not appear to implicate thevoluntariness of his guilty plea and is, thus, precluded (see People v Gentry, 73 AD3d1383, 1384 [2010]; Peoplev McDuffie, 43 AD3d 559, 560 [2007], lv denied 9 NY3d 992 [2007]).In any event, defendant has not, on this record, made any showing that he had a viabledefense to the charges or a colorable claim for suppression (see People v Rivera,71 NY2d 705, 709 [1988]; contrast People v Carnevale, 101 AD3d 1375, 1378-1380[2012]); he has also failed to demonstrate the absence of a strategic reason or otherlegitimate explanations for counsel's decision to not pursue Huntley relief(see People v Rivera, 71 NY2d at 709). Counsel secured a favorable plea dealwith a minimal sentence, and we find no support for defendant's claimed [*3]denial of meaningful representation (see People v Caban, 5 NY3d143, 152 [2005]; People v Benevento, 91 NY2d 708, 713-714 [1998]).Defendant's remaining claims also lack merit.
Rose, J.P., Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.