| People v Abdullah |
| 2014 NY Slip Op 07529 [122 AD3d 958] |
| November 6, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAshraf Abdullah, Appellant. |
Kindlon Shanks & Associates, Albany (Terence L. Kindlon of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedSeptember 6, 2013 in Albany County, convicting defendant upon his plea of guilty of thecrime of robbery in the second degree.
In satisfaction of two consolidated indictments, defendant accepted a plea bargain bywhich he agreed to enter a guilty plea to one count of robbery in the second degree inexchange for a promised prison sentence of no more than 15 years, to be followed by aperiod of postrelease supervision, and waived his right to appeal. Prior to sentencing,defendant moved to withdraw his plea, asserting that it was not voluntary because he didnot fully comprehend the plea proceedings, he was pressured into pleading guilty and hewas denied the effective assistance of counsel. Defendant also claimed that the AssistantDistrict Attorney assigned to prosecute his case should have been disqualified and,finally, that he was innocent of the charges. Supreme Court denied defendant's motionwithout a hearing and sentenced defendant, in accord with the plea agreement, to a prisonterm of 14 years, to be followed by four years of postrelease supervision. Defendant nowappeals and we affirm.
By pleading guilty, defendant has waived his claim that the prosecutor should havebeen disqualified (see People vGryner, 116 AD3d 1247, 1248 [2014]; People v Calvello, 70 AD3d 847, 848 [2010]). In anyevent, were the argument properly before us, we would find it to be meritless.Defendant's related assertion that his counsel was ineffective by failing to adequately[*2]develop the disqualification motion is also foreclosedby defendant's valid appeal waiver, which he does not challenge, as such claim does notimpact the voluntariness of his plea (see People v Livziey, 117 AD3d 1341, 1342 [2014]; People v Barton, 113 AD3d927, 928 [2014]).
With respect to the merits of defendant's remaining arguments, "[t]he decision topermit withdrawal of a guilty plea is a matter within the trial court's sound discretion, anda hearing is required only where the record presents a genuine question of fact as to itsvoluntariness" (People vCole, 118 AD3d 1098, 1100 [2014] [internal quotation marks and citationsomitted]; see People vWren, 119 AD3d 1291, 1292 [2014]). Here, defendant asserts that he wascoerced into pleading guilty by counsel and Supreme Court, that his unfamiliarity withthe English language prevented him from fully understanding what was occurring andthat, as a result of a recent hunger strike, he was not lucid when he entered the plea. Thelatter claim is belied by the record, which contains medical notes indicating thatdefendant began consuming fluids a full week before the April 26, 2013 plea appearanceand had resumed eating solid food three days prior to entering the plea. Moreover, duringSupreme Court's thorough plea colloquy, defendant unequivocally stated that he wasthinking clearly, understood everything that was occurring and denied that he was on anydrugs, alcohol or medication that could have affected his ability to understand what wastranspiring.
Additionally, defendant was provided with an interpreter for each and every courtproceeding and confirmed during the plea that he understood some English, deniedhaving any problem communicating with his attorney and indicated that he had sufficientopportunity to confer with her. When defendant requested additional time to speak withhis attorney about the appeal waiver at one point during the plea, despite being allowedhalf an hour to do so, defendant returned to court within 10 minutes and indicated hisdesire to go forward with the plea. Thus, his claim that he did not understand the natureof the plea proceedings is also contradicted by the record (see People v Jimenez, 96AD3d 1109, 1110 [2012]; People v Vasquez, 61 AD3d 1109, 1111 [2009]). Further,defendant denied that he had been coerced or threatened into pleading guilty and, inresponse to Supreme Court's persistent questioning, defendant indicated that he wasabsolutely certain that he wanted to enter a plea (see People v Howard, 119 AD3d 1090, 1091 [2014], lvdenied 24 NY3d 961 [2014]). Additionally, defendant offered no evidence tosubstantiate his postplea claim of innocence that would have required a hearing (seePeople v Cole, 118 AD3d at 1100; People v Brandon, 112 AD3d 1069, 1070 [2013]).
Defendant's claims that his plea was not voluntary because he was denied theeffective assistance of counsel are likewise contradicted by the plea colloquy, duringwhich defendant assured Supreme Court that he was satisfied with his counsel'srepresentation, and the record demonstrates that counsel made appropriate pretrialmotions and negotiated an advantageous plea on defendant's behalf (see People v Brown, 115AD3d 1115, 1116 [2014], lv denied 24 NY3d 959 [2014]; People v White, 104 AD3d1056, 1057 [2013], lv denied 21 NY3d 1021 [2013]; People v Fiske, 68 AD3d1149, 1150 [2009], lv denied 14 NY3d 800 [2010]).[FN*] Inasmuch as the plea minutes reflectthat defendant's plea was knowing, voluntary and intelligent, we perceive no abuse ofSupreme Court's discretion in denying his motion to [*3]withdraw such plea (see People v Wren, 119 AD3dat 1292; People v Howard, 119 AD3d at 1091). Defendant's remainingcontentions have been considered and are unavailing.
Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent thatdefendant's arguments relate to matters outside the record, they are more appropriatelyraised in a CPL article 440 motion (see People v Wasley, 119 AD3d 1216, 1217 [2014]; People v Santiago, 118 AD3d1032, 1033 [2014]).