| People v Perkins |
| 2015 NY Slip Op 01192 [125 AD3d 1045] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vCurtis Perkins, Appellant. |
Fernande Rossetti, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered April 22, 2011, convicting defendant upon his plea of guilty ofthe crime of attempted criminal possession of a weapon in the second degree.
In satisfaction of two pending charges of criminal possession of a weapon in thesecond degree, defendant pleaded guilty to attempted criminal possession of a weapon inthe second degree, waiving his right to appeal. During the plea allocution, County Courtrepeatedly warned defendant that if he was arrested on any new charges, he was subjectto an enhanced sentence of up to seven years in prison, as opposed to the agreed-uponfive-year term. Prior to sentencing, defendant was arrested and charged in an indictmentwith numerous crimes, including attempted murder in the second degree. The Peoplerequested an Outley hearing, and defendant moved to withdraw his plea on theground that he was coerced into pleading guilty due to threats made by one of hiscodefendants. The court denied the motion to withdraw and, following a hearing,sentenced defendant to seven years in prison to be followed by five years of postreleasesupervision. Defendant now appeals.
We affirm. Initially, we reject defendant's argument that County Court erred insummarily denying his motion to withdraw his plea as involuntary. Although defendant'schallenge to the voluntariness of his plea survives his valid appeal waiver (see e.g. People v Smith, 121AD3d 1131, 1132 [2014]), it lacks merit. "[T]he decision to permit withdrawal of a[*2]defendant's guilty plea is a matter committed to thetrial court's sound discretion, and a hearing is required only where the record presents agenuine question of fact as to the plea's voluntariness" (People v Singletary, 51 AD3d1334, 1334 [2008], lv denied 11 NY3d 741 [2008]). That is, "[o]nly in therare instance will a defendant be entitled to an evidentiary hearing" (People v Baret, 11 NY3d31, 33 [2008] [internal quotation marks and citation omitted]). Here, defendant'sconclusory allegations of coercion and terse description of a threat to his life were "tooflimsy to warrant further inquiry" (id. at 34), especially when viewed in thecontext of his repeated, express denials during the plea allocution that anyone had forcedhim to plead guilty. Under the circumstances, County Court did not abuse its discretionin rejecting, without a hearing, defendant's claims that his plea was coerced (seeid. at 33-34; People v Singletary, 51 AD3d at 1334).
As County Court informed defendant at sentencing, his challenge to the court'srulings in the Outley hearing also survive his waiver (see e.g. People v Fink, 97AD3d 974, 975-976 [2012]; People v Dissottle, 68 AD3d 1542, 1544 [2009], lvdenied 14 NY3d 799 [2010]; People v Pickens, 45 AD3d 1187, 1188 [2007], lvdenied 10 NY3d 769 [2008]). His challenge to the adequacy of the inquiry into hispostplea arrest, however, is also lacking in merit. At the Outley hearing, thePeople submitted the felony complaints and indictment charging defendant withattempted murder, and "[b]oth defendant and his counsel were given ample opportunityto refute the [People's] assertions that defendant had violated the plea terms" (People v Albergotti, 17 NY3d748, 750 [2011]). Inasmuch as the "inquiry [was] of sufficient depth so as to. . . 'satisf[y] [the court]—not of defendant's guilt of the new criminalcharge[s] but of the existence of a legitimate basis for the arrest on th[ose]charges' "—the inquiry was adequate (People v Paneto, 112 AD3d 1230, 1231 [2013], lvdenied 23 NY3d 1023 [2014], quoting People v Outley, 80 NY2d 702, 713[1993], cert denied sub nom. Maietta v Artuz, 519 US 964 [1996]; see Peoplev Albergotti, 17 NY3d at 750).
Finally, defendant's challenge to his enhanced sentence as harsh and excessive isprecluded by his valid waiver of the right to appeal inasmuch as County Court advisedhim of the consequences of violating the conditions of his plea (see People v Lyman, 119AD3d 968, 970 [2014]).
Lahtinen, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.