| People v Crispell |
| 2016 NY Slip Op 01018 [136 AD3d 1121] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vFrancis Crispell, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered February 7, 2014, convicting defendant upon his plea of guilty of the crimeof sexual abuse in the first degree.
Defendant pleaded guilty to sexual abuse in the first degree, and his plea included awaiver of the right to appeal. Prior to being sentenced, defendant moved to withdraw hisplea on the grounds that he was innocent and that his plea was not knowingly,intelligently and voluntarily made. County Court denied the motion without a hearingand sentenced defendant to 3
We affirm. Initially, based upon our review of the plea colloquy and the counseledwritten waiver, we are satisfied that defendant knowingly, intelligently and voluntarilywaived the right to appeal his conviction and sentence (see People v Donah, 127 AD3d1413, 1413 [2015]; Peoplev Long, 117 AD3d 1326, 1326 [2014], lv denied 24 NY3d 1003[2014]). Therefore, defendant's claim that his sentence is harsh and excessive isforeclosed (see People vMayo, 130 AD3d 1099, 1100 [2015]; People v Oginski, 123 AD3d 1303, 1303 [2014], lvdenied 26 NY3d 970 [2015]).
Turning to his plea, "[t]he decision as to whether a defendant should be permitted towithdraw his or her guilty plea is committed to the sound discretion of the trial court anda [*2]hearing is only warranted when the record presentsa genuine issue of fact with respect to its voluntariness" (People v Wren, 119 AD3d1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; see People v Griffin, 89 AD3d1235, 1236 [2011]). Here, the record reflects that County Court fully explained theramifications of the guilty plea, including the rights being forfeited, and defendantaffirmed his understanding thereof and thereafter freely admitted to facts that establishedthe elements of the crime (seePeople v Smith, 89 AD3d 1328, 1328 [2011]; People v Moreno, 86 AD3d863, 864 [2011], lv denied 17 NY3d 954 [2011]). Defendant's claim ofbeing under duress at the time of the plea is belied by the record, as he affirmed duringthe colloquy that he had been provided a full opportunity to discuss the plea withcounsel, including potential defenses, and that he was not being forced into pleadingguilty (see People vPhillips, 71 AD3d 1181, 1183 [2010], lv denied 15 NY3d 755 [2010]).Finally, defendant's unsubstantiated claim of innocence was contradicted by his swornplea admissions (see People vBarton, 126 AD3d 1238, 1239 [2015]; People v Smith, 77 AD3d 1189, 1190 [2010]).Accordingly, County Court did not abuse its discretion in denying defendant's motion towithdraw his plea without a hearing.
Peters, P.J., Garry, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.