| People v Walker |
| 2019 NY Slip Op 05229 [173 AD3d 1561] |
| June 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Brandon Walker, Appellant. |
Jeffrey L. Zimring, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered September 30, 2016, convicting defendant upon his plea of guilty of the crime ofmanslaughter in the first degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to the reduced charge ofmanslaughter in the first degree and waived his right to appeal. Prior to sentencing, defendantmoved to withdraw his plea, claiming that he was coerced into accepting the plea by defensecounsel and a family member. Defendant was assigned new counsel and, following a hearing,County Court denied the motion. Thereafter, defendant was sentenced in accordance with theplea agreement to a prison term of 22 years followed by five years of postreleasesupervision.
We affirm. Although defendant's contention that County Court abused its discretion indenying his motion to withdraw his guilty plea—which relates to the voluntariness of hisplea—is not precluded by the appeal waiver and has been preserved by his unsuccessfulmotion to withdraw his plea (see Peoplev Farnsworth, 140 AD3d 1538, 1539 [2016]; People v Burns, 133 AD3d 1045, 1046 [2015], lv denied 27NY3d 1149 [2016]), it is nevertheless without merit. "Whether to permit a defendant to withdrawhis or her plea of guilty is left to the sound discretion of County Court, and withdrawal willgenerally not be permitted absent some evidence of innocence, fraud or mistake in itsinducement" (People v Beaver, 150AD3d 1325, 1325 [2017] [internal quotation marks and citations omitted]; see People vBurns, 133 AD3d at 1046). Contrary to defendant's contention, defense counsel's frankadvice regarding the unlikelihood of success at trial given the strength of the People's case andthe potential for increased sentencing exposure is generally not coercive or threatening conduct(see People v Vargas, 171 AD3d1394, 1395 [2019]; People v Atkinson, 58 AD3d 943, 943 [2009]; People v Branton, 35 AD3d 1035,1036 [2006], lv denied 8 NY3d 982 [2007]). Similarly, "emotional pleas by familymembers to accept a plea offer [do not render] a plea involuntary or entitle[ ] a defendant to laterwithdraw a plea" (People v Burns, 133 AD3d at 1047). Further, defendant's unsupportedclaim of innocence at the hearing is insufficient to warrant withdrawal of his guilty plea (see People v Wares, 124 AD3d1079, 1081 [2015], lv denied 25 NY3d 993 [2015]; People v Kagonyera, 304AD2d 984, 985 [2003], lv denied 1 NY3d 574 [2003]). In addition, the record reflectsthat County Court, before accepting defendant's plea, engaged in a detailed plea colloquy whereindefendant admitted his guilt, repeatedly verified that he was not being coerced or threatened intopleading guilty, acknowledged that he was pleading guilty of his own free will and confirmedthat he had a full opportunity to discuss the matter with defense counsel and was satisfied withcounsel's representation. In sum, a review of the record establishes that County Court did notabuse its discretion in denying defendant's motion to withdraw his plea and that defendantentered a knowing, voluntary and intelligent guilty plea (see People v Farnsworth, 140AD3d at 1540; People v Burns, 133 AD3d at 1046-1047; People v Wares, 124AD3d at 1081; People v Kagonyera, 304 AD2d at 985).
Garry, P.J., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.