| People v Newkirk |
| 2015 NY Slip Op 08585 [133 AD3d 1364] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBrenda M. Newkirk, Appellant. |
David P. Elkovitch, Auburn, for defendant-appellant.
Brenda M. Newkirk, defendant-appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered August 15, 2013. The judgment convicted defendant, upon her plea of guilty, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her guiltyplea of murder in the second degree (Penal Law § 125.25 [1]). We rejectdefendant's contentions in her main and pro se supplemental briefs that County Courtabused its discretion in denying her request to withdraw the guilty plea." 'Permission to withdraw a guilty plea rests solely within the court's discretion. . . , and refusal to permit withdrawal does not constitute an abuse of thatdiscretion unless there is some evidence of innocence, fraud, or mistake in inducing theplea' " (People vPillich, 48 AD3d 1061, 1061 [2008], lv denied 11 NY3d 793 [2008]).Although defendant contends in her main brief that she was innocent, the recordestablishes that she admitted the elements of murder in the second degree during the pleaallocution and did not make any claim to the court at that time that she was innocent (see People v Hobby, 83 AD3d1536, 1536 [2011], lv denied 17 NY3d 859 [2011]; People v Sparcino, 78 AD3d1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). Defendant's contentionin her pro se supplemental brief that defense counsel coerced her into pleading guilty "isbelied by defendant's statement during the plea colloquy that the plea was not the resultof any threats, pressure or coercion" (People v Campbell, 62 AD3d 1265, 1266 [2009], lvdenied 13 NY3d 795 [2009]; see Sparcino, 78 AD3d at 1509).
Defendant further contends in her main and pro se supplemental briefs that her pleawas not knowingly, intelligently, or voluntarily entered. We reject that contention."Although the initial statements of defendant during the factual allocution may havenegated the essential element of [her] intent to cause death, [her] further statementsremoved any doubt regarding that intent" (People v Trinidad, 23 AD3d 1060, 1061 [2005], lvdenied 6 NY3d 760 [2005]; see People v Theall, 109 AD3d 1107, 1108 [2013], lvdenied 22 NY3d 1159 [2014]).
Contrary to defendant's contention in her pro se supplemental brief, she was notdeprived of the effective assistance of counsel. Defendant received an advantageous plea,and "nothing in the record casts doubt on the apparent effectiveness of counsel"(People v Ford, 86 NY2d 397, 404 [1995]; see People v Pitcher, 126 AD3d 1471, 1473 [2015], lvdenied 25 NY3d 1169 [2015]).
Defendant's challenge in her pro se supplemental brief to the sufficiency of theevidence before the grand jury is forfeited by her guilty plea (see People v Milliman, 122AD3d 1437, 1438 [2014]; People v Dickerson, 66 AD3d 1371, 1372 [2009], lvdenied 13 NY3d 859 [2009]), as is her challenge to evidentiary errors during thegrand jury proceeding (see People v Hansen, 95 NY2d 227, 231[2000]).
[*2] Defendant's contention in her prose supplemental brief that the People failed to disclose Brady material survivesher guilty plea (see People vDeLaRosa, 48 AD3d 1098, 1098-1099 [2008], lv denied 10 NY3d 861[2008]), but we nevertheless conclude that her contention is without merit inasmuch asshe has failed to identify any evidence that was not disclosed (see generally People vJohnson, 60 AD3d 1496, 1497 [2009], lv denied 12 NY3d 926[2009]; People v Terry, 19AD3d 1039, 1040 [2005], lv denied 5 NY3d 833 [2005]).
Defendant contends in her pro se supplemental brief that the court should havegranted her motion to suppress her statements and evidence seized during the search ofher computer. We conclude that those contentions were forfeited by defendant's guiltyplea inasmuch as she "pleaded guilty before the court issued a decision on [her]suppression motion" (People vGillett, 105 AD3d 1444 [2013]; see CPL 710.70 [2]). We rejectdefendant's contention in her pro se supplemental brief that the sentence is unduly harshand severe.
Finally, we have reviewed the remaining contentions in defendant's pro sesupplemental brief and, to the extent that they are properly before us in the context ofdefendant's guilty plea, we conclude that they are without merit. Present—Smith,J.P., Peradotto, Lindley, Valentino and DeJoseph, JJ.