| People v Palmer |
| 2019 NY Slip Op 05716 [174 AD3d 1118] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1](July 18, 2019)
| The People of the State of New York,Respondent, v Samuel Palmer III, Appellant. |
Cappy Weiner, Kingston, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered April 16, 2014, convicting defendant upon his plea of guilty of the crimes of burglary inthe second degree (two counts), grand larceny in the third degree (two counts) and criminalpossession of a weapon in the second degree (six counts).
In March 2013, defendant was charged by indictment with burglary in the second degree(two counts), grand larceny in the third degree (two counts) and criminal possession of a weaponthe second degree (six counts). The charges stemmed from two residential burglaries, during thecourse of which defendant was alleged to have stolen, among other things, jewelry and a numberof firearms. Defendant ultimately pleaded guilty to the indictment with the understanding that hissentencing exposure would be capped at 12 years in prison, with up to five years of postreleasesupervision. Prior to sentencing, defendant successfully requested new counsel, and his newlyassigned counsel filed a motion to withdraw defendant's plea. County Court denied the motionand sentenced defendant to concurrent prison terms of 12 years followed by five years ofpostrelease supervision on each of the burglary and weapon convictions and to lesser concurrentprison terms on the grand larceny convictions. Defendant appeals.
We affirm. Defendant initially contends that County Court should have recused itself frompresiding over this matter because of an alleged familial relationship between the court and oneof the investigating state troopers. Initially, we note that defendant did not raise this argumentbefore County Court, and it is therefore unpreserved for our review (see People v Garrow, 148 AD3d1459, 1460 [2017], lv denied 29 NY3d 1031 [2017]; People v Reid, 97 AD3d 1037,1038 [2012], lv denied 19 NY3d 1104 [2012]). In any event, this issue is moreappropriately raised in the context of a CPL article 440 motion because resolution of such claimdepends on matters outside the record (see e.g. People v Gorman, 165 AD3d 1349, 1350 [2018], lvdenied 32 NY3d 1125 [2018]; People v Jackson, 159 AD3d 1276, 1277 [2018], lv denied31 NY3d 1149 [2018]; People vBrown, 115 AD3d 1115, 1116 [2014], lv denied 24 NY3d 959 [2014]).
Defendant next challenges the voluntariness of his plea and makes a related claim thatCounty Court abused its discretion in denying his subsequent motion to withdraw his plea. Wefind unpersuasive his argument that he felt pressured to take the plea and was not granted enoughtime to personally review the discovery materials provided in this matter. During his pleacolloquy, defendant stated that he had been afforded sufficient time to confer with counsel, thathe was satisfied with counsel's services and that he understood the trial-related rights that he wasrelinquishing (see People v Torres,165 AD3d 1325, 1326 [2018], lv denied 32 NY3d 1210 [2019]; People v Carbone, 101 AD3d1232, 1233 [2012]). In our view "the pressure to which defendant now contends that he wassubjected amounts to the type of situational coercion faced by many defendants who are offered aplea deal, and it does not undermine the voluntariness of defendant's guilty plea" (People v Sparbanie, 158 AD3d942, 944 [2018] [internal quotation marks, brackets and citations omitted], lv denied31 NY3d 1087 [2018]; see People v Torres, 165 AD3d at 1326). As such, we find thatdefendant's plea was knowing, intelligent and voluntary. Further, absent record "evidence ofinnocence, fraud or mistake in the inducement" of the plea, we cannot say that County Courtabused its discretion in denying defendant's motion to withdraw his plea without a hearing (People v Nealon, 166 AD3d 1225,1226 [2018] [internal quotation marks and citations omitted]; see People v Jackson, 163 AD3d 1273, 1274-1275 [2018], lvdenied 32 NY3d 1065 [2018]).
Finally, turning to defendant's challenge to his sentence, we find no extraordinarycircumstances or abuse of discretion warranting modification of the sentence imposed (see e.g. People v Alberts, 161 AD3d1298, 1306 [2018], lv denied 31 NY3d 1114 [2018]; People v Leduc, 140 AD3d 1305,1307-1308 [2016], lv denied 28 NY3d 932 [2016]). Defendant stood convicted ofmultiple violent felonies and was sentenced to concurrent prison terms, which resulted in asentence that was less than the maximum permissible sentence (see Penal Law§ 70.02 [1] [b]; [3] [b]; People v Zirpola, 171 AD3d 1245, 1248 [2019]; People v Harris, 162 AD3d 1240,1244 [2018], lv denied 32 NY3d 937 [2018]). Defendant's remaining arguments,including his conclusory assertion that he was denied the effective assistance of counsel, havebeen examined and found to be lacking in merit.
Lynch, Mulvey, Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.