| People v Plass |
| 2017 NY Slip Op 04174 [150 AD3d 1558] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v WilliamPlass, Appellant. |
G. Scott Walling, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered June 25, 2015, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the third degree.
Defendant waived his right to a grand jury indictment and pleaded guilty to attemptedrobbery in the third degree as charged in the resulting superior court information and waived hisright to appeal. Prior to sentencing, defendant made an oral motion to withdraw his plea, allegingthat the plea was not entered knowingly, voluntarily and intelligently. County Court denied themotion and, in accordance with the plea agreement, sentenced defendant, as a second felonyoffender, to a prison term of 2 to 4 years. Defendant now appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal was valid.County Court distinguished the right to appeal from the rights automatically forfeited by a guiltyplea and defendant communicated his understanding thereof. Additionally, defendant executed awritten waiver in open court, which he and his counsel signed, that included defendant'sacknowledgment that he was waiving the right to appeal after discussing the waiver with counsel(see People v Samuel, 143 AD3d1012, 1012 [2016]; People vRavenell, 114 AD3d 997, 998 [2014], lv denied 23 NY3d 1041 [2014]; People v Hoyt, 106 AD3d 1340,1340 [2013]). We reject defendant's contention that he agreed to plead guilty with noconsideration given in exchange for the plea, as the record reflects that defendant agreed to pleadguilty to a reduced charge (see People vSawyer, 135 AD3d 1164, 1165 [2016], lv denied 27 NY3d 1006 [2016]; compare People v Crump, 107 AD3d1046, 1047 [2013], lv denied 21 NY3d 1014 [2013]). [*2]Defendant's knowing, intelligent and voluntary appeal waiverprecludes his challenge to the severity of his sentence (see People v Miller, 137 AD3d 1485, 1485 [2016]; People v Butler, 134 AD3d 1349,1350 [2015], lv denied 27 NY3d 963 [2016]).
Finally, we reject defendant's contention that he should have been allowed to withdraw hisplea. "Generally, a plea may not be withdrawn unless there is some evidence of innocence, fraudor mistake in its inducement" (People vCarmona, 66 AD3d 1240, 1241 [2009] [citations omitted], lv denied 14 NY3d799 [2010]; see People v Martin,136 AD3d 1110, 1111 [2016]). In support of his motion, defendant contended that his pleawas not knowing and voluntary in that he did not have enough time to discuss the plea withcounsel and that he has reading difficulties, mental health issues and substance abuse issues. Areview of the plea colloquy reflects, however, that defendant affirmed that he had a fullopportunity to meet with counsel prior to entering his plea and that he was satisfied withcounsel's representation, that he was thinking clearly and understood the terms of the plea andthat he had no problem understanding or reading the English language (see People vRavenell, 114 AD3d at 998; People v Hoyt, 106 AD3d at 1340). Defendant's furtherclaim supporting his withdrawal motion, that his plea was not knowing and voluntary because hehad not reviewed certain unidentified discovery material prior to pleading guilty, wasunsubstantiated and insufficient to warrant withdrawal of his plea (see People v Belile, 137 AD3d1427, 1428 [2016], lv denied 27 NY3d 1128 [2016]).
McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.