| People v Mills |
| 2020 NY Slip Op 07631 [189 AD3d 1826] |
| December 17, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Alvin J. Mills, Appellant. |
Joseph A. Ermeti, Public Defender, Delhi (George V. Collins III of counsel), forappellant.
John L. Hubbard, District Attorney, Delhi (Shawn J. Smith of counsel), for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Delaware County (NorthrupJr., J.), rendered January 13, 2020, convicting defendant upon his plea of guilty of the crime ofattempted sexual abuse in the first degree.
In November 2019, defendant waived indictment and consented to be charged in a superiorcourt information with sexual abuse in the first degree and endangering the welfare of a child. Infull satisfaction thereof, defendant pleaded guilty to the reduced charge of attempted sexual abusein the first degree and orally waived the right to appeal. Prior to sentencing, defendant notifiedthe court by letter that he was not comfortable with his decision to plead guilty and accused hisattorney of not representing him adequately. Defendant was subsequently assigned a newattorney and moved to withdraw his plea, alleging his innocence and that his decision to pleadguilty was influenced by his prior counsel and was not knowing and intelligent. In January 2020,County Court denied the motion and, consistent with the terms of the plea agreement, ultimatelysentenced defendant to two years in prison to be followed by five years of postreleasesupervision. Defendant appeals.
We affirm. Defendant challenges the voluntariness of his plea based upon alleged ineffectiveassistance of counsel and contends that County Court therefore abused its discretion in denyinghis motion to withdraw his plea. Initially, inasmuch as defendant's challenge concerns thevoluntariness of his plea, his claim is not foreclosed by the unchallenged appeal waiver and ispreserved by his motion to withdraw his plea (see People v LeClair, 182 AD3d 919, 919 [2020], lv denied35 NY3d 1067 [2020]; People vOzuna, 177 AD3d 1040, 1041 [2019], lv denied 35 NY3d 972 [2020]; People v Harrison, 176 AD3d1262, 1263 [2019], lv denied 34 NY3d 1016 [2019]). "Whether to permit adefendant to withdraw his or her plea of guilty is left to the sound discretion of County Court,and withdrawal will generally not be permitted absent some evidence of innocence, fraud ormistake in its inducement" (People vPizarro, 185 AD3d 1092, 1093 [2020] [internal quotation marks and citations omitted];accord People v Harrison, 176 AD3d at 1263-1264). "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 vBrown, 14 NY3d 113, 116 [2010]).
Here, County Court conducted a thorough and detailed plea colloquy during which defendantconfirmed his understanding of the plea agreement, the trial-related rights that he wasautomatically forfeiting by pleading guilty and the consequences of pleading guilty. Defendantstated that he "[a]bsolutely" wanted to plead guilty, and he assured the court that he had spokenwith his counsel about the case as well as his decision to plead guilty, that he did [*2]not need additional time to speak to his counsel about his decisionto plead guilty and that he was satisfied with the services that his counsel provided to him.Defendant also stated that he had not been threatened, forced or pressured into pleading guiltyand admitted to engaging in the conduct constituting the crime to which he pleaded guilty. Inview of the foregoing, we find that "nothing in the record at the time of the plea calls intoquestion the voluntariness of [the] plea or indicates that it was rendered so due to counsel'srepresentation" (People v Trimm,129 AD3d 1215, 1216-1217 [2015] [internal quotation marks and citation omitted]; accord People v Brown, 115 AD3d1115, 1116 [2014], lv denied 24 NY3d 959 [2014]; see People v Howard, 119 AD3d1090, 1091 [2014], lv denied 24 NY3d 961 [2014]). Further, absent some evidenceof innocence, fraud or mistake in the plea's inducement, we are unpersuaded that County Courtabused its discretion in denying defendant's motion to withdraw his plea without a hearing (see People v Diggs, 178 AD3d1203, 1205 [2019], lv denied 34 NY3d 1158 [2020]; People v Ozuna, 177AD3d at 1041; People v Harrison, 176 AD3d at 1264; People v Trimm, 129AD3d at 1216). To the extent that defendant alleges that his prior counsel failed to properlyadvise him regarding the decision to plead guilty, this claim implicates matters outside of therecord and, therefore, is more properly the subject of a CPL article 440 motion (see People v Snare, 174 AD3d1222, 1223 [2019], lv denied 34 NY3d 984 [2019]; People v Muller, 159 AD3d 1232,1233 [2018]; People v Brown, 115 AD3d at 1116).
Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.