| People v Chaires |
| 2017 NY Slip Op 03566 [150 AD3d 1326] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth R.W. Chaires, Appellant. |
John A. Cirando, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Madison County (McDermott,J.), rendered May 28, 2014, convicting defendant upon his plea of guilty of the crime of rape inthe first degree.
Defendant waived indictment and pleaded guilty to rape in the first degree as charged in asuperior court information. The plea agreement included that defendant waive the right to appealfrom his conviction and sentence. Prior to sentencing, defendant moved to withdraw his plea,based upon a claim of innocence. County Court denied the motion without a hearing andsentenced defendant to 10 years in prison, to be followed by 10 years of postrelease supervision.Defendant now appeals.
We affirm. Initially, we agree with defendant that he did not validly waive the right to appeal.Although County Court explained the right to appeal, we are unable to ascertain that defendantunderstood that he was required to waive the right as part of the plea and County Court did notinquire as to whether defendant had discussed the waiver with counsel. Although defendant alsosigned a written waiver, the waiver does not explain that the right to appeal is separate anddistinct from the rights automatically forfeited by a guilty plea and there was no discussion withdefendant or his attorney regarding whether defendant understood the written waiver.Accordingly, we conclude that defendant's waiver of the right to appeal was not knowing,intelligent and voluntary (see People vPope, 129 AD3d 1389, 1389-1390 [2015]; People v Williford, 124 AD3d 1076, 1077 [2015], lv denied25 NY3d 1209 [2015]).
[*2] We reject, however,defendant's contention that he should have been allowed to withdraw his guilty plea. "Whether toallow withdrawal of a guilty plea is left to the sound discretion of County Court, and willgenerally not be permitted absent some evidence of innocence, fraud or mistake in itsinducement" (People v Mitchell, 73AD3d 1346, 1347 [2010] [internal quotation marks and citations omitted], lv denied15 NY3d 922 [2010]; accord People vMartin, 136 AD3d 1110, 1111 [2016]). A review of the plea colloquy reveals thatCounty Court informed defendant of the ramifications of the plea, including the rights he wouldbe relinquishing. Defendant confirmed his understanding of the plea agreement, that he haddiscussed the plea with counsel and that he was pleading guilty freely and voluntarily. Defendantthereafter admitted to engaging in conduct that constituted the crime at issue and these swornadmissions contradict his subsequent unsupported claims of innocence made in regard to themotion to withdraw the plea (see Peoplev Cadet, 144 AD3d 1335, 1336 [2016], lv denied 28 NY3d 1143 [2017]; People v Crispell, 136 AD3d 1121,1122 [2016], lv denied 27 NY3d 1149 [2016]).
Defendant's claim that his plea was involuntary because he was denied the effectiveassistance of counsel is unpreserved for our review, in light of his failure to move to withdrawhis plea on this ground (see People vSimpson, 146 AD3d 1175, 1176 [2017]; People v Toledo, 144 AD3d 1332, 1333 [2016]). In any event, therecord reflects that counsel's representation was meaningful, inasmuch as counsel negotiated anadvantageous plea deal that greatly reduced defendant's sentencing exposure and defendantacknowledged that he was satisfied with counsel's services and that he had been provided ampletime to discuss the plea with him (seePeople v Sylvan, 108 AD3d 869, 870 [2013], lv denied 22 NY3d 1091 [2014]).Defendant's contention that counsel was ineffective for not filing a written motion to withdrawhis plea is based on matters outside the record, and is therefore more properly the subject of aCPL article 440 motion (see People vHernandez, 140 AD3d 1521, 1523 [2016], lv denied 28 NY3d 971 [2016]).
As to counsel's lack of participation in defendant's pro se motion to withdraw his plea, it iswell settled that assigned counsel has no duty to participate in such a motion (see People v Pimentel, 108 AD3d861, 862 [2013], lv denied 21 NY3d 1076 [2013]; People v Trombley, 91 AD3d1197, 1202 [2012], lv denied 21 NY3d 914 [2013]), and we discern no deprivationof the effective assistance of counsel under the circumstances presented here. To the extent thatcertain remarks made by defendant prior to sentencing can be construed as a request for newcounsel, no conflict of interest is apparent on the record and, under the circumstances presented,County Court was not obligated to assign substitute counsel before deciding defendant's motionto withdraw his plea (see People vTyler, 130 AD3d 1383, 1385 [2015]; People v Pimentel, 108 AD3d at 862-863).Finally, having reviewed the record and, in light of the seriousness of the crime, we discernneither an abuse of discretion nor any extraordinary circumstances warranting a reduction of thesentence in the interest of justice (seePeople v Burnett, 93 AD3d 993, 994 [2012]; People v Evans, 81 AD3d 1040, 1041-1042 [2011], lvdenied 16 NY3d 894 [2011]).
Peters, P.J., Garry, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.