| People v Griffin |
| 2014 NY Slip Op 06422 [120 AD3d 1569] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChaz J. Griffin, Also Known as John Doe, Also Known as Chizzle,Appellant. |
Eftihia Bourtis, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered October 3, 2012. The judgment convicted defendant, upon his plea of guilty, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the second degree (Penal Law § 140.25 [2]). Contraryto defendant's contention, the record establishes that he knowingly, voluntarily andintelligently waived his right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006])." 'Although County Court's colloquy was brief, defendant signed a detailedwritten waiver of the right to appeal . . . , and he acknowledged to the courtthat he understood that he was foregoing the right to appeal' " (People v Bridenbaker, 112AD3d 1379, 1380 [2013]). Defendant's valid waiver of the right to appealencompasses his challenge to the factual sufficiency of the plea allocution (see People v Gardner, 101AD3d 1634, 1634 [2012]). In any event, defendant failed to preserve that challengefor our review, and this case does not fall within the narrow exception to the preservationrequirement (see People vThomas, 72 AD3d 1483, 1483 [2010]).
Defendant's further contention that the court abused its discretion in denying hismotion to withdraw his plea on the ground that it was coerced survives his valid waiverof the right to appeal (seePeople v Jackson, 85 AD3d 1697, 1698 [2011], lv denied 17 NY3d 817[2011]; People v Sparcino,78 AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). Wenevertheless reject that contention. " 'The unsupported allegations of defendantthat [defense counsel] pressured him into accepting the plea bargain [did] not warrantvacatur of his plea' " (People v James, 71 AD3d 1465, 1465 [2010]). Defendantasserted that he accepted the plea offer based on defense counsel's advice that he wasunlikely to prevail at trial and that he would likely receive a harsher sentence if convictedafter trial. That advice does not constitute coercion (see People v Elting, 18 AD3d 770, 771 [2005], lvdenied 5 NY3d 788 [2005]). Furthermore, defendant admitted at sentencing that hepleaded guilty based on his fear that he would not succeed at trial and would receive aharsher sentence, and it is well settled that " 'defendant's fear that a harshersentence would be imposed if defendant were convicted after trial does not constitutecoercion' " (People vZimmerman, 100 AD3d 1360, 1362 [2012], lv denied 20 NY3d 1015[2013]; see People vJackson, 90 AD3d 1692, 1693 [2011], lv denied 18 NY3d 958[2012]).
Finally, although defendant's contention that defense counsel was ineffective forcoercing him into accepting the plea agreement also survives his valid waiver of the rightto appeal (see People v Neil,112 AD3d 1335, 1336 [2013]), that contention is without merit.Present—Smith, J.P., Fahey, Lindley, Whalen and DeJoseph, JJ.