| People v Howard |
| 2014 NY Slip Op 05218 [119 AD3d 1090] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vMarcelles Howard, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County(Ceresia, J.), rendered February 1, 2013, convicting defendant upon his plea of guilty ofthe crime of strangulation in the second degree.
In satisfaction of two pending indictments charging him with assault in the thirddegree, attempted rape in the first degree, strangulation in the second degree, unlawfulimprisonment in the first degree and criminal sale of a controlled substance in the thirddegree, defendant pleaded guilty to one count of strangulation in the second degree andwaived his right to appeal. Defendant subsequently moved pro se to withdraw his guiltyplea and, objecting to the efficacy of assigned defense counsel, requested that newdefense counsel be appointed. Both applications were unsuccessful, and County Courtimposed the agreed-upon sentence of five years in prison to be followed by three years ofpostrelease supervision. Defendant now appeals, and we affirm.
Dealing first with the validity of the guilty plea, defendant admitted to choking thevictim, but initially denied having the requisite intent to prevent her from breathingnormally (see Penal Law §§ 121.11, 121.12). Defendant thenconferred with his attorney, however, and confirmed in response to County Court'squestioning that he had adequately discussed the matter with his attorney and was readyto proceed. Defendant then stated that he intended to prevent the victim from breathingnormally by choking her and that she lost consciousness during the attack. We areaccordingly satisfied that County Court conducted a sufficient inquiry to address [*2]defendant's initial denial and confirm that his plea was aknowing, intelligent and voluntary one (see People v Lopez, 71 NY2d 662, 666[1988]; People v Mitchell,112 AD3d 992, 994 [2013]; People v Ferro, 101 AD3d 1243, 1244 [2012], lvdenied 20 NY3d 1098 [2013]). Our review of the plea colloquy further discloses thatdefendant understood the terms of the plea agreement and discussed it with defensecounsel to his satisfaction and, as such, we perceive no abuse of discretion in the denialof defendant's motion to withdraw his plea without a hearing (see People vAlexander, 97 NY2d 482, 485-486 [2002]; People v Jerome, 98 AD3d 1188, 1188-1189 [2012], lvdenied 20 NY3d 987 [2012]).
Defendant's claim that he received the ineffective assistance of counsel, which waspreserved by his motion to withdraw the plea and is properly before us to the extent thatit impacts the voluntariness of his plea, is nevertheless without merit (see People v Lydecker, 116AD3d 1160, 1161 [2014]). His assertion that counsel coerced him into pleadingguilty is belied by his acknowledgment during the allocution that he understood the termsof the plea agreement and had not been pressured to enter into it. Defendant furthermoved pro se to dismiss the indictment pursuant to CPL 30.30 and contends that counselwas ineffective by failing to prepare such a motion, as well as by the general lack ofinteraction between the two prior to plea negotiations. It suffices to say, however, that"there is nothing in the record to suggest . . . that [these issues] affected hisdecision to plead guilty" (Peoplev Pierce, 38 AD3d 262, 263 [2007], lv denied 8 NY3d 989 [2007]; see People v Trombley, 91AD3d 1197, 1200-1201 [2012], lv denied 21 NY3d 914 [2013]; People v Lane, 1 AD3d801, 803 [2003], lv denied 2 NY3d 742 [2004]; cf. People v Devino, 110AD3d 1146, 1147 [2013]).
Defendant's remaining assertions require little discussion. Inasmuch as defendantproclaimed himself satisfied with defense counsel's performance during the plea colloquyand did not request new counsel until after moving to withdraw his guilty plea, wecannot say that County Court abused its discretion in denying his request for theappointment of new counsel without additional inquiry (see People v Porto, 16 NY3d93, 101 [2010]; People v Medina, 44 NY2d 199, 208-209 [1978]). Lastly,defendant's contention regarding the evidence presented to the grand jury is precludedboth by his guilty plea (see People v Hansen, 95 NY2d 227, 231-232 [2000]; People v Mercer, 81 AD3d1159, 1160 [2011], lv denied 19 NY3d 999 [2012]) and appeal waiver (see People v Maye, 69 AD3d1115, 1116 [2010], lv denied 15 NY3d 807 [2010]).
Peters, P.J., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.