| People v Curry |
| 2014 NY Slip Op 09069 [123 AD3d 1381] |
| December 31, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPaul Curry, Appellant. |
Paul J. Connolly, Delmar, for appellant.
James R. Farrell, District Attorney, Monticello (Robert L. Zangla of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Sullivan County(McGuire, J.), rendered August 31, 2012, convicting defendant upon his plea of guilty ofthe crime of rape in the first degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to the crime ofrape in the first degree in full satisfaction of an indictment charging him with 12 countsof predatory sexual assault against a child. The plea agreement was that defendant wouldreceive a sentence of between 17 and 20 years in prison with 20 years of postreleasesupervision. It also provided for a permanent order of protection, as well as an appealwaiver. County Court advised defendant that if he violated any of the conditions of theplea or the order of protection before sentence, it would not be bound by the sentencingpromises and could instead impose an enhanced sentence of up to 25 years in prisonwithout allowing him to withdraw his guilty plea.
While released on bail and awaiting sentencing, defendant contacted the victim andwas charged with criminal contempt in the second degree for violating the order ofprotection. At a subsequent court appearance on the violation, defendant indicated thathe wished to withdraw his plea. County Court granted defendant's request to relieve hiscounsel and the matter was adjourned to permit defendant to retain new counsel.Through his new counsel, defendant thereafter moved to vacate the guilty plea and, afterextensive oral argument, County Court denied the motion. At the ensuing hearing on theviolation, defendant admitted that he contacted the victim. The court determined thatdefendant violated the order of protection and, as a result, [*2]sentenced defendant to a prison term of 25 years with 20years of postrelease supervision, and issued a permanent order of protection. Defendantappeals.
In support of his motion to withdraw his plea, defendant argued, primarily, that hisformer counsel coerced him into accepting it. During the argument on the motion,defense counsel stated, generally, that defendant's former counsel was a member of afirm that was among the "finest" in the locality and that counsel had negotiated a"wonderful" deal. Defendant's counsel also presented arguments in support ofdefendant's professed innocence, introduced a theory of the case that was allegedly notexplored by former counsel, and explained that, while he did not have any directknowledge, defendant and his family felt intimidated by his former counsel's feedemand.
"It is well settled that a defendant has a right to the effective assistance of counsel onhis or her motion to withdraw a guilty plea" (People v Mitchell, 21 NY3d 964, 966 [2013] [citationsomitted]). A " 'defendant's right to counsel [is] adversely affected when his [orher] attorney, either voluntarily or at the court's urging, [becomes] a witness against him[or her]' " (People vHutchinson, 57 AD3d 1013, 1014-1015 [2008], lv denied 12 NY3d 817[2009], quoting People v Santana, 156 AD2d 736, 737 [1989]) or if counselmakes remarks that "affirmatively undermine" a defendant's arguments (People v Pimentel, 108 AD3d861, 863 [2013], lv denied 21 NY3d 1076 [2013] [internal quotation marksand citations omitted]). Here, counsel made the motion on defendant's behalf and, whileit was not necessary for counsel to express his opinion with regard to the generalcompetence of defendant's former counsel, we do not find that counsel undermined,expressed an opinion or otherwise took a position with regard to the merits of thespecific arguments raised on the motion to withdraw the plea (see People vPimentel, 108 AD3d at 863; People v Milazo, 33 AD3d 1060, 1061 [2006], lvdenied 8 NY3d 883 [2007]). Further, the record confirms that counsel's statementsdid not influence County Court's determination in any meaningful way (People v Wester, 82 AD3d1677, 1678 [2011], lv denied 17 NY3d 803 [2011]).
We also reject defendant's claim that County Court erred by denying his motion towithdraw his guilty plea without a further hearing. Such a determination "is left to thesound discretion of County Court, and [withdrawal] will generally not be permittedabsent some evidence of innocence, fraud or mistake in its inducement" (People v Mitchell, 73 AD3d1346, 1347 [2010], lv denied 15 NY3d 922 [2010] [internal quotation marksand citation omitted]; see CPL 220.60 [3]). Here, County Court properlyconcluded that defendant's claim that he was pressured to accept the plea, made after hewas charged with violating the order of protection, is belied by the record. The pleaproceedings were adjourned over a number of days to allow defendant time to considerthe options that were presented to him and whether to retain new counsel. During theplea colloquy, defendant confirmed that he was satisfied with the legal counsel he hadbeen provided, denied that he had been coerced, indicated that he understood the termsof the plea and admitted that he raped the 12-year-old victim. Under the circumstances,and in the absence of any genuine factual issues, we find that County Court did not abuseits discretion by summarily denying defendant's application to withdraw his plea (see People v Wren, 119 AD3d1291, 1292 [2014], lv denied 24 NY3d 1048 [Nov. 24, 2014]; People v Wilson, 92 AD3d981, 981 [2012], lv denied 19 NY3d 1029 [2012]).
Contrary to his claims on this appeal, we further find that the record reflects thatdefendant voluntarily waived his right to a hearing on the issue of whether he violatedthe terms of the plea agreement. The court properly advised that it retained the discretionto impose the statutorily permitted minimum sentence of five years (see PenalLaw § 70.02 [1] [a]; [3] [a]; [*3]People v Kathy XX., 31AD3d 1062, 1063 [2006], lv denied 7 NY3d 849 [2006]). While the courtdid not expressly confirm that the People could move to withdraw consent to the plea ifsomething less than the 17-year minimum sentence that was agreed to under the pleaagreement were imposed (see People v Farrar, 52 NY2d 302, 307-308 [1981];People v Kathy XX., 31 AD3d at 1063), we do not believe the record reflects thatthis omission was misleading in any way or that it could have affected the voluntarinessof defendant's waiver.
We agree with defendant, however, that because only the Board of Parole isauthorized to impose the conditions of a term of postrelease supervision (see People v Monk, 21 NY3d27, 32 [2013]; Penal Law § 70.45 [3]; Executive Law§§ 259-c [2]; 259-i [3], [4]), County Court erred to the extent that itimposed certain conditions of defendant's postrelease supervision at sentencing and theconditions should be stricken. Similarly, inasmuch as neither a fine nor restitution wasmentioned at the plea proceedings, the matter must be remitted to allow County Court toeither impose the sentence that was negotiated or to give defendant an opportunity towithdraw his plea before imposing the enhanced sentence (see People v Hulett, 117 AD3d1279, 1279 [2014]; Peoplev Harden, 99 AD3d 1108, 1109 [2012]). In contrast, while only an order ofprotection against the victim was discussed during the plea agreement, "[o]rders ofprotection are not punitive in nature and are not necessarily dependent on, or the resultof, a plea agreement" (People vHarnett, 72 AD3d 232, 235 [2010], affd 16 NY3d 200 [2011]; see People v Nieves, 2 NY3d310, 316 [2004]). Accordingly, County Court did not err when it imposed an orderof protection in favor of the victim and her family at sentencing and, notwithstanding thisCourt's determination to remit this matter, the order of protection remains in place.
Finally, given that we are vacating the sentence, any challenge thereto as harsh andexcessive is academic. In any event, such challenge would be precluded by defendant'svalid oral and written appeal waivers (see People v Bradshaw, 18 NY3d 257, 259 [2011]; People v Lopez, 6 NY3d248, 256 [2006]).
McCarthy, J.P., Garry, Devine and Clark, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the CountyCourt of Sullivan County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.