| People v Pooler |
| 2018 NY Slip Op 01091 [158 AD3d 935] |
| February 15, 2018 |
| Appellate Division, Third Department |
[*1](February 15, 2018)
| The People of the State of New York, Respondent, v KevinPooler, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Joel E. Abelove, District Attorney, Troy (Katy M. Moryl of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (McGrath, J.), rendered May 7,2014 in Rensselear County, convicting defendant upon his plea of guilty of the crime of robberyin the first degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to robbery in the firstdegree and waived his right to appeal. Under the terms of the plea agreement, he was to besentenced to five years in prison, followed by five years of postrelease supervision. Prior tosentencing, he made a pro se motion to withdraw his guilty plea that was denied by SupremeCourt. Defendant was subsequently sentenced in accordance with the terms of the pleaagreement, and he now appeals.
Initially, the People concede and we agree that defendant's appeal waiver is invalid inasmuchas he was not advised of the separate and distinct nature of the right to appeal and did notindicate to Supreme Court that he understood its many ramifications (see People v Dumas, 155 AD3d1256, 1256 [2017]; People vLoika, 153 AD3d 1516, 1517 [2017]). Consequently, the appeal waiver does notpreclude defendant's challenge to the voluntariness of his guilty plea or to the effectiveness of hiscounsel.
Defendant maintains that Supreme Court should have made further inquiry before denyinghis motion to withdraw his guilty plea. Specifically, he asserts that his guilty plea was notknowing, voluntary and intelligent because he was not in the right mental state during the pleaproceedings, was not adequately advised of possible defenses and was lied to by counsel.[*2]"Whether to permit a defendant to withdraw his or her plea of guiltyis left to the sound discretion of [the trial c]ourt, and withdrawal will generally not be permittedabsent some evidence of innocence, fraud or mistake in its inducement" (People v Beaver, 150 AD3d 1325,1325 [2017] [internal quotation marks and citations omitted]; see People v Charleston, 142 AD3d 1248, 1250 [2016]).Significantly, defendant did not exhibit any signs that he suffered from a mental deficit duringthe plea proceedings. He had already been found competent to stand trial following a CPL 730.30examination and engaged in coherent communications with the court, indicating that he fullyunderstood the rights that he was forfeiting by pleading guilty. Moreover, defendant's assertionsregarding the deficiencies of counsel are conclusory in nature and concern matters outside therecord. Therefore, we find that Supreme Court did not abuse its discretion in summarily denyingdefendant's motion to withdraw his guilty plea (see People v Bond, 145 AD3d 1323, 1324 [2016], lv denied29 NY3d 1090 [2017]; People v Charleston, 142 AD3d at 1250). Furthermore, given thatdefendant's claim of ineffective assistance of counsel is predicated on matters outside the record,it is more appropriately addressed via a CPL article 440 motion (see People v Smith, 155 AD3d1244, 1246 [2017]; People v Bond, 145 AD3d at 1324).
Garry, P.J., McCarthy, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.