| People v Ware |
| 2018 NY Slip Op 01755 [159 AD3d 1401] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v GregoryWare, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen N. McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedDecember 16, 2014. The judgment convicted defendant, upon his plea of guilty, of manslaughterin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends thathis waiver of the right to appeal is not valid. We agree. It is well settled that, for a waiver of theright to appeal to be valid, the plea minutes must establish that it was knowingly, voluntarily andintelligently entered, and the plea court "must make certain that a defendant's understanding ofthe terms and conditions of a plea agreement is evident on the face of the record" (People v Lopez, 6 NY3d 248, 256[2006]). "When a trial court characterizes an appeal as one of the many rights automaticallyextinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendantcomprehended the nature of the waiver of appellate rights" (id.). Here, we agree withdefendant that the plea minutes fail to "establish that the defendant understood that the right toappeal is separate and distinct from those rights automatically forfeited upon a plea of guilty"(id.), and thus the waiver is invalid (see People v Mallard, 151 AD3d 1957, 1958 [4th Dept 2017], lvdenied 29 NY3d 1130 [2017];People v Cintron, 125 AD3d 1333, 1333 [4th Dept 2015], lv denied 25 NY3d1071 [2015]).
Nevertheless, we affirm. Even assuming, arguendo, that defendant preserved for our reviewhis contention that County Court coerced him to plead guilty, we conclude that his contention "isbelied by [his] statement during the plea proceeding that [he] was not threatened, coerced orotherwise influenced against [his] will into pleading guilty" (People v Beaty, 303 AD2d965, 965 [4th Dept 2003], lv denied 100 NY2d 559 [2003]; see People v Strasser, 83 AD3d1411, 1411 [4th Dept 2011]). In addition, "the court did not coerce defendant into pleadingguilty merely by informing him of the range of sentences that he faced if he proceeded to trialand was convicted" (People vPitcher, 126 AD3d 1471, 1472 [4th Dept 2015], lv denied 25 NY3d 1169[2015]; see People v Carr, 147AD3d 1506, 1507 [4th Dept 2017], lv denied 29 NY3d 1030 [2017]). Defendant alsofailed to establish that the court coerced him to plead guilty by denying his attorney's request toadjourn the trial. It is well settled that a " 'court's exercise of discretion in denying arequest for an adjournment will not be overturned absent a showing of prejudice' " (People v Peterkin, 81 AD3d 1358,1360 [4th Dept 2011], lv denied 17 NY3d 799 [2011]; see People v Rogers, 103 AD3d1150, 1151 [4th Dept 2013], lv denied 21 NY3d 946 [2013]), and defendant failed tomake such a showing here.
Defendant's contention that he was denied effective assistance of counsel survives his guiltyplea only to the extent that he "contends that his plea was infected by the allegedly ineffectiveassistance and that he entered the plea because of his attorney's allegedly poor [*2]performance" (People v Bethune, 21 AD3d 1316, 1316 [4th Dept 2005], lvdenied 6 NY3d 752 [2005]; seePeople v Collins, 129 AD3d 1676, 1676-1677 [4th Dept 2015], lv denied 26NY3d 1038 [2015]). Defendant " 'must show that there is a reasonable probability that,but for counsel's errors, he would not have pleaded guilty and would have insisted on going totrial' " (People v Hernandez,22 NY3d 972, 975 [2013], cert denied 572 US &mdash, 134 S Ct 1900 [2014],quoting Hill v Lockhart, 474 US 52, 59 [1985]; see People v Bank, 28 NY3d 131, 137-138 [2016]), and defendantfailed to even allege that he would have proceeded to trial absent counsel's allegeddeficiencies.
Contrary to defendant's further contention, the court properly refused to suppress hisstatements to the police. To the contrary, the court properly concluded that defendant "did notclearly communicate a desire to cease all questioning indefinitely" (People v Caruso, 34 AD3d 860,863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers, 122 AD3d 1396, 1397 [4th Dept 2014],lv denied 24 NY3d 1219 [2015]), and thus did not make an " 'unequivocal andunqualified' " assertion of his right to remain silent (People v Zacher, 97 AD3d 1101, 1101 [4th Dept 2012], lvdenied 20 NY3d 1015 [2013]; seePeople v Young, 153 AD3d 1618, 1619 [4th Dept 2017], lv denied 30 NY3d1065 [2017]; People v Cole, 59AD3d 302, 302 [1st Dept 2009], lv denied 12 NY3d 924 [2009]). Defendant failed topreserve for our review his contention that the court should have suppressed his statements basedon unfulfilled promises made by the police inasmuch as he "failed to raise that specificcontention in his motion papers or at the suppression hearing as a ground for suppressing hisstatements" (People v Schluter, 136AD3d 1363, 1363 [4th Dept 2016], lv denied 27 NY3d 1138 [2016]; see People v Keegan, 133 AD3d1313, 1314 [4th Dept 2015], lv denied 27 NY3d 1152 [2016]). In any event, ourreview of the record discloses "no evidence of a promise that defendant would not be prosecutedor that he would receive lenient treatment" that might justify suppression of the ensuingstatements (People v Sachs, 280 AD2d 966, 966 [4th Dept 2001], lv denied 96NY2d 834 [2001], denied upon reconsideration 97 NY2d 708 [2002]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra,Peradotto, DeJoseph and Curran, JJ.