| People v Burnell |
| 2020 NY Slip Op 02683 [183 AD3d 931] |
| May 7, 2020 |
| Appellate Division, Third Department |
[*1](May 7, 2020)
| The People of the State of New York,Respondent, v Joseph Burnell Jr., Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Rebecca L. Fox of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Clinton County(Favreau, J.), rendered March 8, 2018, convicting defendant upon his plea of guilty ofthe crimes of robbery in the second degree, burglary in the second degree, petit larcenyand criminal possession of a controlled substance in the seventh degree (twocounts).
Pursuant to a plea agreement, defendant pleaded guilty to robbery in the seconddegree, burglary in the second degree, petit larceny and two counts of criminalpossession of a controlled substance in the seventh degree in satisfaction of aneight-count indictment, and he waived his right to appeal. Thereafter, defendant made anoral pro se motion to withdraw his plea on the grounds that he was innocent and that hewas under mental distress and not thinking clearly at the time that he entered the guiltyplea. County Court denied the motion without a hearing and, consistent with the pleaagreement, sentenced defendant, as a second felony offender, to prison terms of sevenyears, followed by five years of postrelease supervision, for each burglary and robberyconviction and to one-year jail terms for each of the remaining convictions, all sentencesto run concurrently. Defendant appeals.
We affirm. Initially, we agree with defendant that the waiver of the right to appeal isinvalid. A review of County Court's brief colloquy with regard to the appeal waiverreflects that the court did not explain to defendant the separate and distinct nature of theappeal waiver or ensure "that defendant appreciated the right that he was relinquishingand understood the consequences thereof" (People v Miller, 166 AD3d 1385, 1386 [2018] [internalquotation marks and citations omitted], lv denied 32 NY3d 1207 [2019]; accord People v Mitchell, 166AD3d 1233, 1233 [2018], lv denied 33 NY3d 979 [2019]). Althoughdefendant executed a written waiver in open court, the court did not ascertain fromdefendant that he had conferred with counsel, had read the written appeal waiver or thathe understood the consequences thereof (see People v Pittman, 166 AD3d 1243, 1244 [2018], lvdenied 32 NY3d 1176 [2019]; People v Mallard, 163 AD3d 1350, 1351 [2018], lvdenied 32 NY3d 1066 [2018]). Given the invalid appeal waiver, defendant'schallenge to the severity of the sentence imposed is not foreclosed. Nevertheless, we findno abuse of discretion or extraordinary circumstances warranting a reduction of theagreed-upon sentence in the interest of justice (see People v Palmer, 174 AD3d 1118, 1119-1120 [2019];People v Suddard, 164AD3d 950, 951 [2018], lv denied 32 NY3d 1178 [2019]).
Defendant's challenges to the voluntariness of his guilty plea and his related claimthat County Court abused its discretion in summarily denying his motion to withdraw hisguilty plea are without merit. The record reflects that defendant unequivocallyacknowledged, in response to the court's inquiries, that he understood the terms of theplea agreement, understood the rights he was forfeiting as a consequence of pleadingguilty, that he was not being threatened to plead guilty and that he had sufficient time tospeak with counsel and was satisfied with counsel's services. Defendant then admitted toengaging in conduct constituting the crimes at issue, which was set forth in detail, anddefendant made no statements during the colloquy that called into question his actualinnocence or the voluntariness of his plea. There is no indication in the plea colloquy thatdefendant lacked the capacity to understand either the plea proceeding or theramifications of pleading guilty (see People v Snow, 159 AD3d 1278, 1279 [2018]) nor diddefendant, in moving to withdraw, present any evidence in support of his assertion thathis mental state was impaired at the time of his guilty plea (People v Wade, 110 AD3d1113, 1114 [2013], lv denied 22 NY3d 1160 [2014]). Contrary todefendant's unsupported and conclusory assertions, the record reflects that he entered aknowing, voluntary and intelligent guilty plea. In the absence of "evidence of innocence,fraud or mistake in the indictment," we find no abuse of the court's discretion in denyingdefendant's motion to withdraw his plea (People v Diggs, 178 AD3d 1203, 1204-1205 [2019][internal quotation marks and citation omitted], lv denied 34 NY3d 1158 [2020];see People v Ozuna, 177AD3d 1040, 1041 [2019]; People v Harrison, 176 AD3d 1262, 1264 [2019], lvdenied 34 NY3d 1016 [2019]; People v Snow, 159 AD3d at 1279; People v Nieves, 166 AD3d1380, 1380-1381 [2018], lv denied 33 NY3d 979 [2019]).
Defendant also contends that he was denied the effective assistance of counsel. Tothe extent that such contention impacts upon the voluntariness of his plea, it isunpreserved for our review inasmuch as this was not the ground upon which defendantmoved to withdraw his plea and the record reflects that he made no postallocutionmotion on such basis (seePeople v Major, 176 AD3d 1257, 1258 [2019], lv denied 34 NY3d 1017[2019]; People v Alexander,174 AD3d 1068, 1069 [2019], lv denied 34 NY3d 949 [2019]; People v Darrell, 145 AD3d1316, 1317 [2016], lv denied 29 NY3d 1125 [2017]). Further, we areunpersuaded by defendant's contention that defense counsel made statements thataffirmatively undermined the arguments advanced by defendant in the pro se motion towithdraw his plea (see People vChaires, 150 AD3d 1326, 1328 [2017], lv denied 29 NY3d 1124 [2017];People v Pimentel, 108AD3d 861, 862-863 [2013], lv denied 21 NY3d 1076 [2013]). Theremainder of defendant's ineffective assistance of counsel claim—namely, thatcounsel ignored his wish to testify before the grand jury, failed to investigate defendant'sclaim of innocence, pressured defendant to accept the guilty plea and did not adequatelyexplained the waiver of the right to appeal to defendant—concern matters outsidethe record that are more appropriately pursued by way of a CPL article 440 motion (see People v Derrig, 175 AD3d1675, 1676 [2019], lv denied 34 NY3d 1127 [2020]; People v Williams, 171 AD3d1354, 1355 [2019]; Peoplev Aldous, 166 AD3d 1077, 1079 [2018], lv denied 32 NY3d 1124[2018]).
Lynch, J.P., Mulvey, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.