| People v Barton |
| 2014 NY Slip Op 00250 [113 AD3d 927] |
| January 16, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJoseph Barton, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered October 13, 2010, convicting defendant upon his plea of guiltyof the crime of criminal possession of marihuana in the first degree.
Defendant and his son, codefendant Jay Debberman, were charged in an indictmentwith criminal possession of marihuana in the first degree and criminal possession of acontrolled substance in the fourth degree. Defendant elected to represent himself andmoved to suppress the marihuana that had been seized from their residence. Pursuant to aplea agreement reached in the midst of the suppression hearing, he and Debbermanwithdrew their pending suppression motion, and defendant pleaded guilty to criminalpossession of marihuana in the first degree and waived his right to appeal. County Courtlater denied the joint applications of defendant and Debberman to withdraw their guiltypleas and sentenced defendant, consistent with the plea agreement, to a conditionaldischarge. Defendant appeals.
We affirm. While defendant asserted a variety of arguments in his motion towithdraw the guilty plea, he appears to solely contend here that he received theineffective assistance of counsel during the plea proceedings. "Whether a defendantshould be permitted to withdraw his or her plea rests within the sound discretion of thetrial court and, generally, such a motion should not be granted absent a showing ofinnocence, fraud or mistake in the inducement" (People v Galvan, 107 AD3d 1058, 1058 [2013] [citationomitted], lv denied 21 NY3d 1042 [2013]; see People v Arnold, 102 AD3d 1061, 1062 [2013]).Defendant chose to represent himself after being fully informed by the court that hewould not be permitted hybrid representation, i.e., to proceed pro se and also havestandby counsel at the table to advise him (see People v Rodriguez, 95 NY2d497, 501 [2000]; People v Mirenda, 57 NY2d 261, 265 [1982]). In any event,defendant acknowledged that he had discussed the plea offer with standby counsel to hissatisfaction. The record reveals that defendant entered a knowing, intelligent andvoluntary guilty plea and, thus, his application to withdraw his plea was properly denied.
Defendant's contentions regarding his suppression motion, which he withdrew beforea decision could be rendered upon it, are precluded by his valid guilty plea and appealwaiver (see People v Fernandez, 67 NY2d 686, 688 [1986]; People v Morrison, 106 AD3d1201, 1202 [2013]). His arguments regarding the ineffective assistance of counseloutside of the plea context are similarly barred by his appeal waiver (see People v Trombley, 91AD3d 1197, 1201 [2012], lv denied 21 NY3d 914 [2013]; People v Santos-Rivera, 86AD3d 790, 791 [2011], lv denied 17 NY3d 904 [2011]). Defendant'sremaining assertion that County Court lacked jurisdiction over this proceeding, whileproperly before us, has been examined and found to lack merit.
Peters, P.J., Rose and Garry, JJ., concur. Ordered that the judgment is affirmed.