| People v Merritt |
| 2014 NY Slip Op 01934 [115 AD3d 1250] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vStephan Merritt, Appellant. |
—[*1] Stephan Merritt, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 11, 2012. The judgment convicted defendant, upon his plea of guilty,of attempted burglary in the first degree, robbery in the second degree, attempted robberyin the second degree and robbery in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of, inter alia, attempted burglary in the first degree (Penal Law §§110.00, 140.30 [2]) and robbery in the second degree (§ 160.10 [2] [a]). Contraryto defendant's contention, defense counsel did not coerce him to plead guilty bydenigrating his pro se motion to withdraw his plea, which motion was based upondefendant's claims of innocence and ineffective assistance of counsel. Instead, defensecounsel adopted the motion and advised Supreme Court that he and defendant haddiscussed defendant's concerns (cf. People v Mitchell, 21 NY3d 964, 966 [2013]). Thecourt "was presented with a credibility determination when defendant moved to withdrawhis plea and advanced his belated claims of innocence and coercion," and we concludethat it did not abuse its discretion in discrediting those claims (People v Sparcino, 78 AD3d1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). " 'Only in the rareinstance will defendant be entitled to an evidentiary hearing' " on a motion to withdraw aplea of guilty (Mitchell, 21 NY3d at 966), and we conclude that, here, there is nobasis for such a hearing. We therefore reject defendant's further contention in his mainand pro se supplemental briefs that we should remit this matter for the assignment of newcounsel and a de novo determination of the motion.
To the extent that defendant contends in his pro se supplemental brief that his pleawas not voluntary because it was coerced by defense counsel, that contention survivesthe valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10[1989]; Sparcino, 78 AD3d at 1509), and it is preserved for our review by hismotion to withdraw his plea (see People v Lopez, 71 NY2d 662, 665 [1988]).We nevertheless conclude that the contention is without merit inasmuch as it is belied bythe record (see People vCulver, 94 AD3d 1427, 1427-1428 [2012], lv denied 19 NY3d 1025[2012]). [*2]During the thorough plea colloquy,defendant advised the court that he was satisfied with the services of his attorneys, thathe had enough time to discuss his plea with those attorneys, that no one had forced himto plead guilty, and that he was pleading guilty voluntarily (see People v Wolf, 88 AD3d1266, 1266-1267 [2011], lv denied 18 NY3d 863 [2011]). To the extent thatdefendant contends in his pro se supplemental brief that conversations with his attorneysgave rise to ineffective assistance of counsel because he was "stressed out" and "couldnot think straight" and, thus, that he was coerced into pleading guilty, that contention isbased on matters outside the record and must therefore be raised by way of a motionpursuant to CPL article 440 (see Culver, 94 AD3d at 1428).Present—Scudder, P.J., Peradotto, Carni, Lindley and Valentino, JJ.