| People v Mercado |
| 2020 NY Slip Op 06826 [188 AD3d 1418] |
| November 19, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ricardo Mercado, Appellant. |
Shane A. Zoni, Public Defender, Hudson (Jessica Howser of counsel), for appellant.
Paul Czajka, District Attorney, Hudson (Kevin B. Thiemann of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Columbia County (Koweek, J.),rendered September 24, 2018, convicting defendant upon his plea of guilty of the crimes ofcriminal contempt in the first degree (three counts), criminal contempt in the second degree (twocounts) and stalking in the third degree (two counts).
Defendant was charged in an indictment with criminal contempt in the first degree (threecounts), criminal contempt in the second degree (two counts) and stalking in the third degree(two counts). While released on bail, defendant had further contact with the same victim and wasarrested on new charges of, among other things, criminal contempt in the first degree. Hethereafter pleaded guilty as charged in the indictment with the understanding that the subsequentcharges against him would be dismissed. The plea agreement also required defendant to waivehis right to appeal. Prior to sentencing, defendant retained new counsel and moved to withdrawhis plea. County Court denied the motion and sentenced defendant to the agreed-upon concurrentprison term of 1
We affirm. Regardless of the validity of defendant's appeal waiver, the sufficiency of theevidence presented to the grand jury "cannot be challenged following a guilty plea" (People vWhitehurst, 291 AD2d 83, 87-88 [2002], lv denied 98 NY2d 642 [2002]; see People v Guerrero, 28 NY3d110, 116 [2016]; People vWilburn, 158 AD3d 894, 894-895 [2018], lv denied 31 NY3d 1123 [2018]; People v Herringshaw, 83 AD3d1133, 1134 [2011]). Although defendant relies on the exception outlined in People vPelchat (62 NY2d 97 [1984]) in arguing that he is entitled to challenge the evidence despitehis plea, the exception is inapplicable inasmuch as "there is no suggestion that the Peopledoubted the accuracy of the evidence presented to the [g]rand [j]ury in this case" (People vWhitehurst, 291 AD2d at 88; see People v Sczepankowski, 293 AD2d 212, 214[2002], lv denied 99 NY2d 564 [2002]).
Defendant's contentions that his plea was not knowing, intelligent and voluntary and thatCounty Court erred in summarily denying his motion to withdraw his plea are unpersuasive."Whether to permit a defendant to withdraw his or her plea of guilty is left to the sounddiscretion of County Court, and withdrawal will generally not be permitted absent some evidenceof innocence, fraud or mistake in its inducement" (People v Massia, 131 AD3d 1280, 1281 [2015] [internal quotationmarks, brackets and citation omitted], lv denied 26 NY3d 1041 [2015]; see People v Miller, 172 AD3d1530, 1531 [2019], lv denied 34 NY3d 935 [2019]). "An evidentiary hearing will berequired only where the record presents a genuine question of fact as to the plea's voluntariness"(People v Decker, 139 AD3d1113, 1116 [2016] [internal quotation marks and citations omitted], lv denied 28NY3d 928 [2016]; see People vRoosevelt, 169 AD3d 1117, 1118 [2019]).
In support of his motion to withdraw his plea, defendant asserted that he was innocent andthat he was denied the effective assistance of counsel, i.e., that he did not have sufficient time todiscuss the plea offers with counsel, that counsel did not explain the plea offers to him, thatcounsel pressured him into pleading guilty and that he had a poor relationship with counsel at thetime of his plea. The transcript of the plea colloquy reflects, however, that defendant assuredCounty Court that he was not threatened or forced into pleading guilty, that he had been providedsufficient time to review the offers with counsel, that counsel explained the offers and that hewas satisfied with counsel's representation (see People v LeClair, 182 AD3d 919, 920 [2020], lv denied35 NY3d 1067 [2020]; People vWrest, 159 AD3d 1274, 1275 [2018]). Defendant then unequivocally admitted toengaging in the charged conduct and made no statements that called into question his guilt.Although defendant points to an affidavit made by the victim that negated certain elements of thecrimes as support for his claims of innocence, the affidavit was previously submitted bydefendant as part of his omnibus motion and, therefore, he was aware of it at the time of his plea(see People v Beaver, 150 AD3d1325, 1325 [2017]). Under these circumstances, defendant's allegations did not underminethe voluntariness of his plea and we find no abuse of the court's discretion in denying defendant'smotion (see People v Burnell, 183AD3d 931, 933 [2020], lv denied 35 NY3d 1043 [2020]; People v LeClair,182 AD3d at 920).
Lynch, J.P., Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.