| People v Nealon |
| 2018 NY Slip Op 07786 [166 AD3d 1225] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Nealon, Appellant. |
Justin C. Brusgul, Voorheesville, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Schenectady County(Sira, J.), rendered June 28, 2016, convicting defendant upon his plea of guilty of thecrimes of strangulation in the second degree and criminal contempt in the firstdegree.
In full satisfaction of a four-count indictment, defendant agreed to plead guilty to onecount of strangulation in the second degree and one count of criminal contempt in thefirst degree in exchange for prison terms of 3
Initially, we agree with defendant that his waiver of the right to appeal was invalid,as County Court "did not advise defendant of the separate and distinct nature of thewaiver" (People vJaggarnine, 163 AD3d 1352, 1353 [2018]; see People v Morrow, 163 AD3d 1265, 1265 [2018]), andthe court's brief exchange with defendant "fell short of ensuring that defendantappreciated the right that he was relinquishing and understood the consequences thereof"(People v Mallard, 163AD3d 1350, 1351 [2018]; see People v Baker, 157 AD3d 1164, 1165 [2018]).Similarly, although defendant executed a written waiver of the right to appeal, CountyCourt did not ask whether defendant had read the written waiver (see People v Thompson, 157AD3d 1141, 1141 [2018]) and otherwise "made no attempt to ensure that defendantunderstood the contents or ramifications thereof" (People v McClain, 161 AD3d 1457, 1458 [2018] [internalquotation marks, brackets and citations omitted]; see People v Ortiz, 153 AD3d 1049, 1049 [2017]). Assuch, defendant is not precluded from challenging the severity of his sentence (see People v [*2]Gonzalez, 162 AD3d 1403, 1404 [2018]). Uponreviewing the record and considering the nature of the underlying crimes, we find noextraordinary circumstances or abuse of discretion warranting a reduction of the sentencein the interest of justice (see generally People v Morrow, 163 AD3d at1266).
Defendant's remaining claim—that his motion to withdraw his plea wasimproperly denied—is equally unpersuasive. "The decision whether to grant amotion to withdraw a guilty plea rests within the sound discretion of the trial court and,generally, such relief will be permitted only where there is evidence of innocence, fraudor mistake in the inducement" (People v Little, 92 AD3d 1036, 1036 [2012] [citationsomitted]; see People vConklin, 160 AD3d 1114, 1114-1115 [2018]). Notably, "[a] hearing is requiredonly when 'the record presents a genuine issue of fact with respect to [the plea's]voluntariness' " (Peoplev Khan, 139 AD3d 1261, 1262 [2016], lv denied 28 NY3d 932 [2016],quoting People v Crispell,136 AD3d 1121, 1122 [2016], lv denied 27 NY3d 1149 [2016]). Defendant'sconclusory assertion that he felt compelled to accept the guilty plea and hisunsubstantiated claims of innocence are belied by the transcript of his plea colloquy,wherein he denied that he had been "pressured . . . in any way" to accept aguilty plea and assured County Court that he understood the nature of the proceedings,had been afforded sufficient time to confer with counsel, was satisfied with counsel'sservices and was pleading guilty of his "own free will." Under these circumstances,County Court did not abuse its discretion in denying defendant's motion to withdraw hisplea without a hearing (see People v Crispell, 136 AD3d at 1122; People v Trimm, 129 AD3d1215, 1215-1216 [2015]; People v Wren, 119 AD3d 1291, 1292 [2014], lvdenied 24 NY3d 1048 [2014]). Accordingly, the judgment of conviction isaffirmed.
Garry, P.J., McCarthy, Lynch and Aarons, JJ., concur. Ordered that the judgment isaffirmed.