| People v Diggs |
| 2019 NY Slip Op 08892 [178 AD3d 1203] |
| December 12, 2019 |
| Appellate Division, Third Department |
[*1](December 12, 2019)
| The People of the State of New York,Respondent, v Carlos Diggs, Appellant. |
Erin C. Morigerato, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mulvey, J.P. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered March 31, 2017, convicting defendant upon his plea of guilty of the crimes ofaggravated criminal contempt, criminal contempt in the first degree and aggravated familyoffense.
Defendant pleaded guilty to aggravated criminal contempt, criminal contempt in the firstdegree and aggravated family offense in full satisfaction of three indictments and approximately50 uncharged crimes, and waived his right to appeal. County Court denied defendant's multiplerequests for new counsel, as well as defendant's pro se motion to withdraw his guilty plea on thegrounds that, among other things, he was innocent and did not receive meaningful assistancefrom defense counsel as a result of a personal conflict between him and defensecounsel.[FN*]Thereafter,consistent with the plea agreement, County Court sentenced defendant, as a second felonyoffender, to consecutive prison terms of 3
We affirm. Initially, we find without merit defendant's contention that the waiver of the rightto appeal is invalid. The record reflects that, after sufficiently setting forth the rightsautomatically forfeited by the guilty plea, County Court explained that the appeal waiver wasseparate and distinct from those trial-related rights, and defendant affirmed his understandingthereof (see People v Thacker, 173AD3d 1360, 1360-1361 [2019], lv denied 34 NY3d 938 [2019]; People v Tucker, 164 AD3d 948,949 [2018]). Additionally, during the plea proceeding, defendant conferred with counsel and thenexecuted a detailed appeal waiver in open court, acknowledging that he had no questions aboutthe document and understood its contents (see People v Jawan, 165 AD3d 1350, 1350 [2018], lvdenied 32 NY3d 1173 [2019]). Contrary to defendant's contention, we find that the recorddemonstrates that defendant understood and voluntarily waived his right to appeal his convictionand sentence (see People v Thacker, 173 AD3d at 1361; People v White, 172 AD3d 1822,1823 [2019], lv denied 33 NY3d 1110 [2019]; People v Tucker, 164 AD3d at949).
We are unpersuaded by defendant's challenge to the voluntariness of the plea and the relatedclaim that County Court erred in denying his motion to withdraw his guilty plea. In support of hismotion to withdraw his plea, defendant asserted that he was innocent and failed to receive theeffective assistance of counsel due to a personal conflict with defense counsel. The record, asnoted by the court, clearly and unequivocally belied defendant's contentions. During the pleacolloquy, defendant acknowledged that he understood the proceedings, that he had sufficient timeto discuss the plea with defense counsel and was satisfied with her representation, that he was notbeing threatened, coerced or forced into pleading guilty and that he was doing so because he was,in fact, guilty of the charged conduct. Defendant failed to offer any further support for hisgeneralized grounds seeking to withdraw his plea, notwithstanding inquiry by the court. Underthese circumstances, defendant's allegations and unsupported claim of innocence did notundermine the voluntariness of his plea (see People v Palmer, 174 AD3d 1118, 1119 [2019]; People v Pittman, 166 AD3d 1243,1245 [2018], lv denied 32 NY3d 1176 [2019]). Further, in the absence of sufficient"evidence of innocence, fraud or mistake in the inducement," County Court did not abuse itsdiscretion in denying defendant's motion to withdraw his plea (People v Palmer, 174AD3d at 1119; accord People vBurks, 172 AD3d 1640, 1641 [2019], lv denied 33 NY3d 1102 [2019]; People v Nealon, 166 AD3d 1225,1226 [2018]). Defendant's remaining challenges to the voluntariness of the plea, including that hewas coerced into pleading guilty by the threat of a harsher sentence, are unpreserved for ourreview in light of his failure to move to withdraw the plea on those grounds (see People v Chaires, 150 AD3d1326, 1327 [2017], lv denied 29 NY3d 1124 [2017]).
To the extent that defendant contends that the sentence was harsh and excessive, thischallenge is precluded by his valid appeal waiver (see People v Snare, 174 AD3d 1222, 1223 [2019], lv denied34 NY3d 984 [2019]; People vClerveau, 174 AD3d 1066, 1068 [2019], lv denied 34 NY3d 949 [2019]).Finally, defendant's challenge to the multiple findings of contempt purportedly committed duringthe sentencing proceeding within the immediate view and in the presence of County Court isreviewable by a proceeding pursuant to CPLR article 78, not upon direct appeal (seeJudiciary Law §§ 752, 755; People v Percer, 90 AD3d 789, 790 [2011], lv denied 19NY3d 1104 [2012]).
Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Although defendant also assertedas a basis to withdraw his plea that he had received an anonymous letter threatening to hurt hischildren and their mother, on appeal he does not challenge the denial of his motion to withdrawhis plea on this basis.