| People v Green |
| 2015 NY Slip Op 07101 [132 AD3d 1268] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTrameil Green, Also Known as Marcus Truitt, Also Known as Alfred Parker, Appellant.(Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-Mclaughlin ofcounsel), for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered November 21, 2011. The judgment convicted defendant, upon his plea ofguilty, of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of robbery in the first degree (Penal Law § 160.15[3]). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea ofguilty of rape in the first degree (§ 130.35 [1]), and predatory sexual assault(§ 130.95 [2]).
Initially, we agree with defendant in each appeal that his waiver of the right to appealwas invalid because " 'the minimal inquiry made by [Supreme] Court wasinsufficient to establish that the court engage[d] defendant in an adequate colloquy toensure that the waiver of the right to appeal was a knowing and voluntarychoice' " (People vCarrasquillo, 130 AD3d 1498, 1498 [2015]; see People v Harris, 121 AD3d 1423, 1424 [2014], lvdenied 25 NY3d 989 [2015]). Nevertheless, we reject defendant's contention in eachappeal that the sentence is unduly harsh and severe.
Defendant failed to preserve for our review his challenge to the factual sufficiency ofthe plea allocution in appeal No. 1, because "defendant's motion to withdraw his pleawas made on clearly different grounds" (People v Carter, 254 AD2d 202, 202[1998], lv denied 93 NY2d 871 [1999]; see People v Spears, 106 AD3d 1534, 1535 [2013], affd24 NY3d 1057 [2014]). This case does not fall within the narrow exception to thepreservation rule (see People v Lopez, 71 NY2d 662, 666 [1988]).
With respect to appeal Nos. 1 and 2, we reject defendant's contention that the courterred in denying his motion to withdraw his plea. Although defendant contends that hisplea was not knowing, voluntary, and intelligent because the court failed to inquirewhether he was under the influence of psychotropic medications, we note that, here,defendant "was by all indications perfectly lucid while the plea proceedings were inprogress" (People v Royster,40 AD3d 885, 887 [2007], lv denied 9 NY3d 881 [2007]; see People v Lear, 19 AD3d1002, 1002 [2005], lv denied 5 NY3d 807 [2005]; People v McCann,289 AD2d 703, 703-704 [2001]). Defendant's further contention that his plea of guiltywas coerced by defense counsel is "belied by [his] statement during the plea proceedingthat [he] was not threatened, coerced or otherwise influenced against [his] will intopleading guilty" (People vIrvine, 42 AD3d 949, 949 [2007], lv denied 9 NY3d 962 [2007][internal quotation marks omitted]). To the extent defendant contends that he was underthe influence of psychotropic drugs when he entered his plea of guilty and that he wascoerced into pleading guilty by defense counsel, those contentions are "based on mattersoutside the record and must therefore be raised by way of a motion pursuant to CPLarticle 440" (People vMerritt, 115 AD3d 1250, 1251 [2014]).
[*2] Contrary to defendant's contention, he was notdeprived of effective assistance of counsel at sentencing based on his attorney's refusal toincorporate the arguments raised by defendant at sentencing into the written motion towithdraw defendant's plea (seee.g. People v Adams, 66 AD3d 1355, 1356 [2009], lv denied 13 NY3d858 [2009]; People v Klumpp, 269 AD2d 798, 799 [2000], lv denied 94NY2d 922 [2000]). We also conclude that defense counsel did not take a positionadverse to defendant at sentencing, or become a witness against him (see People v Collins, 85 AD3d1678, 1679 [2011], lv denied 18 NY3d 993 [2012]; cf. People v Lawrence, 27AD3d 1091, 1091-1092 [2006]). Indeed, we note that defense counsel urged thecourt to consider defendant's pro se arguments.
Finally, we note in appeal No. 2 that the certificate of conviction incorrectly reflectsthat defendant was convicted of predatory sexual assault under Penal Law§ 131.95 (2), and it must therefore be amended to reflect that he wasconvicted under Penal Law § 130.95 (2) (see People v Holmes, 104AD3d 1288, 1290 [2013], lv denied 22 NY3d 1041 [2013]).Present—Smith, J.P., Carni, Lindley, Valentino and DeJoseph, JJ.