| People v Hollenbeck |
| 2017 NY Slip Op 05766 [152 AD3d 974] |
[*1]
| 1 The People of the State of New York, Respondent, v KennethJ. Hollenbeck III, Appellant. |
John A. Cirando, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Madison County (McDermott,J.), rendered November 10, 2014, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the second degree.
On December 28, 2013, defendant was charged with numerous crimes after an incident inwhich he went to the home of his daughter and her mother (hereinafter the victim) at 3:00 a.m.and engaged in a confrontation with the victim and her boyfriend. Pursuant to a plea agreement,defendant waived indictment and pleaded guilty to the reduced charge of attempted burglary inthe second degree in satisfaction of a superior court information and other potential charges. Theplea agreement, which included a waiver of appeal, provided that the sentence would be betweensix months in jail with five years of probation and two years in prison with three years ofpostrelease supervision. Defendant was remanded to jail pending a restitution hearing, duringwhich time he was arrested for assaulting another inmate. Defendant thereafter moved towithdraw his guilty plea, which County Court denied at the next appearance. Having previouslyindicated their intent to seek an enhanced sentence, the People ultimately agreed to resolve thejailhouse assault with an adjournment in contemplation of dismissal and, pursuant to the pleaagreement, the court imposed a prison sentence of two years to be followed by three years ofpostrelease supervision. Defendant appeals.
Initially, we find that defendant's waiver of appeal was not valid, as neither the oral colloquynor the written waiver signed by defendant adequately conveyed "that the right to [*2]appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People vLopez, 6 NY3d 248, 256 [2006]; see People v Mitchell, 144 AD3d 1327, 1328 [2016]). Accordingly,defendant's challenge to the factual sufficiency of the plea allocution is not precluded (see People v Atkinson, 124 AD3d1149, 1150 [2015], lv denied 25 NY3d 949 [2015]) and it was preserved by hisunsuccessful motion to withdraw his plea,[FN*] which he contends should have been granted(see CPL 220.60 [3]; People vFarnsworth, 140 AD3d 1538, 1539 [2016]). Nevertheless, we find his claims to bewithout merit.
Defendant argues that his plea was not knowing, voluntary and intelligent because he madestatements during the plea allocution that were equivocal, unclear or inadequate. Contrary todefendant's claims, since he pleaded guilty "to a lesser crime as part of a plea bargain, [CountyC]ourt [was] not required to engage in a factual recitation in order to establish the elements of thecrime" (People v Banks, 137 AD3d1458, 1459 [2016] [internal quotation marks and citation omitted]). Moreover, defendantmade no factual admissions that were inconsistent with the crime to which he was pleading guilty(see People v Seeber, 4 NY3d780, 781 [2005]; cf. People v Banks, 137 AD3d at 1460). Accordingly, we arepersuaded that defendant's guilty plea was a "knowing, voluntary and intelligent choice amongalternative courses of action" (People vConceicao, 26 NY3d 375, 382 [2015] [internal quotation marks and citation omitted];see People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
Further, "[w]hether to permit a defendant to withdraw his or her plea of guilty is left to thesound discretion of County Court, and withdrawal will generally not be permitted absent someevidence of innocence, fraud or mistake in its inducement" (People v Decker, 139 AD3d 1113, 1116 [2016] [internal quotationmarks and citation omitted], lv denied 28 NY3d 928 [2016]). For the reasons previouslystated, we reject defendant's claims on the motion premised upon the insufficiency of theallocution. In support of his motion, defendant also submitted an affidavit asserting that he hadnot intended to commit a crime when he entered or remained unlawfully in the victim's homebut, rather, merely entered out of concern for his child, and that he would not have pleaded guiltyhad he known that this was an element of the offense. However, "[a] defendant is not entitled towithdraw his [or her] guilty plea based on a subsequent unsupported claim of innocence, wherethe guilty plea was voluntarily made with the advice of counsel following an appraisal of all therelevant factors" (People v Fisher,28 NY3d 717, 726 [2017] [internal quotation marks and citation omitted]; accord Peoplev Alexander, 97 NY2d 482, 485 [2002]). Under these circumstances, we find no abuse ofdiscretion in the denial of defendant's motion.
Finally, we discern no extraordinary circumstances or abuse of discretion warranting areduction of the agreed-upon sentence in the interest of justice, particularly given that it resolvedother charges and was significantly less than the maximum permissible sentence (seePenal Law § 70.02 [1] [c]; [3] [c]; People v Godfrey, 148 AD3d 1364, 1364 [2017]). Defendant'sremaining claims have been reviewed and determined to be lacking in merit.
Rose, Mulvey and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:We reject the People's assertionthat the discussion preceding the ultimate resolution of the matter waived or renderedunpreserved the issues raised in defendant's motion to withdraw his guilty plea.