| People v Burks |
| 2020 NY Slip Op 06172 [187 AD3d 1405] |
| October 29, 2020 |
| Appellate Division, Third Department |
[*1](October 29, 2020)
| The People of the State of New York,Respondent, v Charles W. Burks, Appellant. |
Michelle E. Stone, Vestal, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered May 4, 2017, convicting defendant upon his plea of guilty of the crimes ofmanslaughter in the second degree and assault in the first degree.
In August 2016, defendant and his spouse were jointly charged, under an acting in concerttheory, with the crimes of manslaughter in the second degree, assault in the first degree, criminalsale of a controlled substance in the third degree, assault in the second degree (two counts) andendangering the welfare of a child. The first four charges of the indictment arose out ofallegations that, in May 2016, defendant and his spouse recklessly caused their five-year-old sonto die of a mixed drug intoxication resulting from an Oxycodone overdose, malnutrition and thepresence of toxic levels of diphenhydramine (Benadryl) and Clonodine. The remaining twocharges arose out of allegations that roughly a year prior, in May 2015, defendant and his spouserecklessly caused the child to suffer hypoxic-ischemic encephalopathy—a brain injury thatleft the child unable to swallow or feed himself—by, among other things, administeringmethadone to the child. Defendant moved to suppress statements he made to the police, as wellas physical evidence seized upon his arrest and pursuant to a search warrant. Although CountyCourt conducted Huntley and Mapp hearings, defendant entered a guilty pleabefore receiving a determination on his suppression motions. Specifically, defendant pleadedguilty to manslaughter in the second degree and assault in the first degree in full satisfaction ofall charges and in exchange for a negotiated sentence.
Prior to sentencing, defendant filed a pro se motion to withdraw his guilty plea on severalgrounds. County Court denied the motion without a hearing, and thereafter sentenced defendant,as a first time felony offender, in accordance with the negotiated plea agreement—toconcurrent prison terms of 4 to 12 years upon the manslaughter in the second degree convictionand 13 years followed by five years of postrelease supervision upon the assault in the first degreeconviction.[FN1]Defendant appeals.
Defendant first challenges the denial of his pro se motion to withdraw his guilty plea withouta hearing. The determination of whether to permit a defendant to withdraw his or her guilty plealies within the discretion of County Court; absent some evidence of innocence, fraud or mistakein its inducement, withdrawal of a guilty plea is generally not permitted (see People v Brown, 14 NY3d113, 116 [2010]; People vWren, 119 AD3d 1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]). Further,an evidentiary hearing on a motion to withdraw a guilty plea is required only when the recordpresents a genuine issue of fact as to the voluntariness of the plea (see People v Brown,14 NY3d at 116; People v Crispell,136 AD3d 1121, 1122 [2016], lv denied 27 NY3d 1149 [2016]).
Here, we find no abuse of discretion in County Court's determination to deny defendant'smotion to withdraw his plea without conducting a hearing. Initially, the record belies defendant'sclaims that his guilty plea was coerced, entered when he was under undue emotional distressand/or impacted by an impaired mental or physical state. The plea colloquy reflects thatdefendant was clearly advised of the plea terms and their consequences, and defendant indicatedthat he had adequate time to confer with counsel, had discussed the evidence against him andpossible defenses and was satisfied with defense counsel's representation. Defendant capably andcoherently responded to County Court's questions and stated during the allocution that it was hischoice to enter a guilty plea and that he had not been threatened, coerced or otherwise forced toplead guilty. Further, he assured the court that his prescribed medications were not affecting hisability to understand the proceedings and that he did, in fact, understand what was happening. Inshort, there is no indication in the plea colloquy that defendant lacked the capacity to understandthe proceeding and the consequences of pleading guilty or that defendant's plea was coerced orthe product of undue distress (see Peoplev Burnell, 183 AD3d 931, 932-933 [2020], lv denied 35 NY3d 1043 [2020]; People v Snow, 159 AD3d 1278,1279 [2018]; People v Russell, 286 AD2d 825, 826-827 [2001], lv denied 97NY2d 760 [2002]). Moreover, in support of his motion, defendant failed to submit any evidencesupporting his unsworn, conclusory allegations. For example, he did not provide any evidencedetailing the dosages or side effects of his prescription medications or establishing his claimedlow blood sugar levels and the potential impact of such levels (see People v Burnell, 183AD3d at 932-933; People v Wade,110 AD3d 1113, 1114 [2013], lv denied 22 NY3d 1160 [2014]). Contrary todefendant's contentions, the record established that his guilty plea was knowing, voluntary andintelligent (see People v Burnell, 183 AD3d at 932-933; People v Snow, 159AD3d at 1279).
Defendant further asserts that defense counsel was ineffective and that County Court shouldhave granted his motion to withdraw his guilty plea due to numerous failings by defense counsel.To the extent that these claims relate to the voluntariness of defendant's plea, the majority of suchclaims were not raised in his written motion to withdraw his guilty plea and are, therefore,unpreserved (see People v Burnell, 183 AD3d at 933; People v Ramos, 179 AD3d 1395, 1396 [2020], lv denied35 NY3d 973 [2020]; People vGriffin, 134 AD3d 1228, 1230 [2015], lv denied 27 NY3d 1132[2016]).[FN2] As the recorddoes not reflect that defendant made any statements during the plea colloquy that negated anelement of the crimes to which he pleaded guilty or otherwise called into question thevoluntariness of his plea, the narrow exception to the preservation requirement is inapplicable(see People v Williams, 27 NY3d212, 214, 219-220 [2016]; People v Lopez, 71 NY2d 662, 665-666 [1988]). Theremainder of defendant's ineffective assistance of counsel claims concern matters outside of therecord and are thus more properly considered in the context of a motion to vacate pursuant toCPL article 440 (see People vShabazz, 174 AD3d 1223, 1225 [2019]; People v Miazga, 167 AD3d 1167, 1168 [2018], lv denied32 NY3d 1207 [2019]). To the extent that defendant's contentions concern matters appearingboth on the record and outside of the record, they present a mixed claim of ineffective assistance,which are better addressed together, in their entirety, in a motion pursuant to CPL 440.10 (see People v Taylor, 156 AD3d 86,89-92 [2017], lv denied 30 NY3d 1120 [2018]).
Next, defendant argues that his statements to police should have been suppressed in that theywere taken in violation of his right to counsel and that the evidence seized pursuant to the searchwarrant should have been suppressed as based upon statements unlawfully obtained from himand his spouse. With the exception of defendant's right to counsel claim, defendant forfeitedappellate review of the claims raised in his suppression motion by pleading guilty after thesuppression hearing, but before his motion was decided (see People v Fernandez, 67NY2d 686, 688 [1986]; People vNugent, 173 AD3d 1483, 1483-1484 [2019]; People v Rodriguez, 118 AD3d 1182, 1182-1183 [2014], lvdenied 24 NY3d 964 [2014]; compare CPL 710.70 [2]). Although we recognize thata right to counsel claim may survive a guilty plea (see People v McLean, 15 NY3d 117, 120-121 [2010]), here, duringthe course of his guilty plea, defendant expressly relinquished his right to a decision on that issue,which was raised in his suppression motion and fully argued at the Huntley hearing.Under these circumstances, defendant waived appellate review of his right to counsel claim(see generally People v Hansen, 95 NY2d 227, 230-232 & n 1 [2000]).
Further, defendant's knowing, voluntary and intelligent guilty plea precludes his challenge toCounty Court's denial of his motion to sever counts 5 and 6 of the indictment from the remainingcounts of the indictment (see People v Ramos, 179 AD3d at 1397; People v Hunter, 49 AD3d 1243,1243 [2008]; People v Smith, 290 AD2d 464, 464 [2002], lv denied 98 NY2d 702[2002]). Defendant's challenge to the sufficiency of the evidence before the grand jury issimilarly precluded (see People vGuerrero, 28 NY3d 110, 116 [2016]; People v King, 185 AD3d 1090, 1090-1091 [2020]). As a finalmatter, we are wholly unconvinced that defendant's negotiated sentence—which wasbelow the statutory maximum (see Penal Law §§ 70.00 [2] [c]; [3] [b];70.02 [1] [a]; [3] [a])—was harsh or excessive.
To the extent that we have not expressly addressed any of defendant's arguments, they havebeen examined and found to be lacking in merit.
Garry, P.J., Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant's spouse wasconvicted, upon her plea of guilty, to manslaughter in the second degree and assault in the firstdegree and sentenced to concurrent prison terms of 3 to 9 years for the manslaughter convictionand nine years, followed by four years of postrelease supervision, for the assault conviction. ThisCourt affirmed the spouse's conviction (People v Burks, 179 AD3d 1387 [2020]).
Footnote 2:Even if defendant's letter todefense counsel, which was appended to his pro se motion, were deemed sufficient to preservethe claims for review, we would nonetheless find that County Court did not abuse its discretionin denying the motion without a hearing.