| People v O'Neill |
| 2014 NY Slip Op 02628 [116 AD3d 1240] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v PaulL. O'Neill, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Kenneth H. Tyler Jr. of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Cortland County (Ames,J.), rendered January 31, 2012, convicting defendant upon his plea of guilty of the crimesof use of a child in a sexual performance and course of sexual conduct against a child inthe first degree.
Defendant waived indictment and pleaded guilty to a superior court informationcharging him with use of a child in a sexual performance and course of sexual conductagainst a child in the first degree. Defendant thereafter moved to withdraw his plea,contending that he was pressured into pleading guilty based upon the threat of a federalprosecution. County Court denied defendant's motion and thereafter sentencedhim—consistent with the terms of the plea agreement—to an aggregateprison term of 15 years followed by 20 years of postrelease supervision. Defendant nowappeals.
Initially, we agree with defendant that his waiver of the right to appeal his convictionand sentence was invalid due to the lack of specificity contained within the documententitled "waiver of appeal" and County Court's corresponding failure to apprisedefendant of the separate and distinct nature of the right that he was forfeiting (see People v Gilbert, 106AD3d 1133, 1133 [2013]; People v Ladieu, 105 AD3d 1265, 1265 [2013], lvdenied 21 NY3d 1017 [2013]). Accordingly, none of the arguments advanced bydefendant upon appeal are precluded by the purported waiver.[*2]
Turning to the merits, "[t]he fact that thepossibility of a federal prosecution may have influenced defendant's decision to pleadguilty is insufficient to establish that the plea was coerced" (People v Hobby, 83 AD3d1536, 1536 [2011], lv denied 17 NY3d 859 [2011]; cf. People v Goodell, 104AD3d 1026, 1026 [2013], lv denied 22 NY3d 1138 [2014]; People v Wolf, 88 AD3d1266, 1267 [2011], lv denied 18 NY3d 863 [2011]). Further, defendant'spresent claim of coercion is belied by the transcript of the plea colloquy, whereindefendant—in addition to admitting that he committed the underlyingcrimes—expressly denied that he had been threatened in any manner, indicatedthat he was pleading guilty of his own free will and confirmed that he had thoroughlydiscussed the matter with counsel, who, in turn, had answered all of his questions (see People v Young, 112AD3d 1068, 1069 [2013]; People v Wilson, 92 AD3d 981, 981 [2012], lvdenied 19 NY3d 1029 [2012]; People v Coppaway, 281 AD2d 754, 754[2001]). Accordingly, County Court did not abuse its discretion in denying defendant'smotion to withdraw his plea.
Defendant's challenges to the factual sufficiency and voluntariness of his plea werenot advanced in his motion to withdraw his plea, and the record does not reflect thatdefendant thereafter moved to vacate the judgment of conviction upon the grounds nowasserted (see People vRobinson, 112 AD3d 1349, 1349 [2013]; People v Lugg, 108 AD3d 1074, 1075 [2013]; People v Kinney, 94 AD3d641, 641-642 [2012], lv denied 19 NY3d 963 [2012]). Accordingly, theseclaims are unpreserved for our review. Moreover, the narrow exception to thepreservation requirement was not triggered here, as defendant did not make anystatements during the plea colloquy that were inconsistent with his guilt or otherwisecalled into question the voluntariness of his plea (see People v Gruber, 108 AD3d 877, 877 [2013], lvdenied 22 NY3d 956 [2013]; People v Sylvan, 107 AD3d 1044, 1045 [2013], lvdenied 22 NY3d 1141 [2014]). Defendant's claim that he was denied the effectiveassistance of counsel due to counsel's alleged failure to seek County Court's recusal issimilarly unpreserved absent evidence of an appropriate postallocution motion upon thatground (see People vFrazier, 63 AD3d 1633, 1633-1634 [2009], lv denied 12 NY3d 925[2009]; People v Mahipat,49 AD3d 1243, 1244 [2008]; People v Leonard, 37 AD3d 1148, 1149 [2007], lvdenied 8 NY3d 947 [2007]).
Finally, with respect to the sentence imposed, the record reflects that defendantexploited his position of trust over a young victim and subjected her to repeated acts ofsexual abuse—at least one of which he photographed. Under these circumstances,we discern no abuse of discretion or extraordinary circumstances that would warrant areduction in the agreed-upon sentence (see People v Beliard, 101 AD3d 1236, 1239 [2012], lvdenied 20 NY3d 1096 [2013]; People v Hults, 308 AD2d 608, 609 [2003],lv denied 1 NY3d 540 [2003]). Defendant's remaining arguments, to the extentnot specifically addressed, have been examined and found to be lacking in merit.
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.