| People v Trichilo |
| 2021 NY Slip Op 06114 [199 AD3d 1125] |
| November 10, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Maurice Trichilo, Appellant. |
Donnial K. Hinds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Colangelo, J. Appeal from a judgment of the Supreme Court (Connolly, J.), rendered January9, 2019 in Albany County, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the third degree.
In satisfaction of a pending indictment, defendant pleaded guilty to attempted criminal sale ofa controlled substance in the third degree and waived his right to appeal. The relevant terms ofthe plea agreement provided that sentencing would be adjourned so that defendant could applyfor and, if accepted, participate in a drug court treatment program. If defendant did participateand was successful, he would be permitted to withdraw his plea and plead guilty to amisdemeanor drug possession charge. If his participation proved unsuccessful, defendant wouldface a sentence of up to six years in prison to be followed by three years of postreleasesupervision.
Defendant was accepted into the drug court treatment program and, despite several admittedviolations of its terms, was permitted to continue participating in it. He then stopped attendingtreatment and failed to attend a court appearance to discuss that failure, at which point a benchwarrant was issued for his arrest. He was arrested in connection with a new drug offense severalmonths later, after which he appeared before Supreme Court and indicated that he wished towithdraw his guilty plea. Supreme Court appointed new counsel to prepare a formal motion towithdraw the plea, which was submitted and denied without a hearing. Supreme Court thendetermined that defendant had violated the drug court agreement and sentenced him, as a secondfelony drug offender, to a prison term of four years and postrelease supervision of two years.Defendant appeals and we affirm.
Defendant argues that Supreme Court abused its discretion in denying his motion towithdraw his plea without a hearing, and that contention survives defendant's unchallengedappeal waiver given its connection to the voluntariness of his plea (see People v Mills, 189 AD3d1826, 1827 [2020]; People vLeClair, 182 AD3d 919, 919 [2020], lv denied 35 NY3d 1067 [2020]). Whetherto permit a defendant to withdraw his or her guilty plea is left to the sound discretion of the trialcourt, and permission will ordinarily not be granted absent some evidence of innocence, fraud ormistake in the plea's inducement (see People v Mills, 189 AD3d at 1827; People v Mercado, 188 AD3d1418, 1419 [2020]). Further, no evidentiary hearing is required on such a motion unless therecord reveals a genuine question of fact as to whether the plea was voluntarily entered (seeid.).
Defendant alleged in his motion papers—which were not included in the record onappeal but, as court records, we will take judicial notice of—that the plea was involuntarybecause he was intoxicated during the plea colloquy and failed to appreciate the strength of theevidence against him due to the ineffective assistance of his then[*2]-counsel (see Oakes v Muka, 56 AD3d 1057, 1059 [2008]). The formerargument is belied by defendant's statements during the plea colloquy, when he acknowledgedthat he was thinking clearly and was not under the influence of drink or other intoxicants. As forthe latter argument, the alleged failure of defendant's then-counsel to sufficiently review a pieceof evidence with him "implicates matters outside of the record and, as such, is more properly thesubject of a CPL article 440 motion" (People v Keaton, 122 AD3d 954, 955 [2014], lv denied 24NY3d 1220 [2015]; see People v Mills, 189 AD3d at 1828). The record itself reflects thatcounsel negotiated a favorable plea agreement that would have resulted in a misdemeanorconviction had defendant completed the drug court treatment program, and defendantacknowledged during the plea colloquy that he had fully discussed the plea offer with his counseland was "[e]xtremely" satisfied with counsel's services, after which he admitted to committingthe crime to which he pleaded guilty. Accordingly, we find nothing in the record at the time ofthe plea that calls its voluntariness into question (see People v Mills, 189 AD3d at 1828;People v Trimm, 129 AD3d1215, 1216-1217 [2015]). Thus, as defendant's allegations are contradicted by the record,and there is no other "record evidence of innocence, fraud or mistake in the inducement of theplea, we cannot conclude that [Supreme] Court abused its discretion in denying defendant'smotion to withdraw his plea without a hearing" (People v LaPierre, 189 AD3d 1813, 1816 [2020], lv denied36 NY3d 1098 [2021]; see CPL 220.60 [3]; People v Seeber, 4 NY3d 780, 781-782 [2005]; People v Wrest, 159 AD3d 1274,1275 [2018]; People v Obert, 1AD3d 631, 632 [2003], lv denied 2 NY3d 764 [2004]).
Defendant finally asserts that counsel appointed to prepare the motion to withdraw his pleawas ineffective in failing to include defendant's affidavit or other proof regarding his interactionswith former counsel. However, as the assertions in that motion are contradicted by defendant'splea allocution and find no other record support, they would not have entitled him to withdrawhis plea even if they were presented via other proof. Defendant stood little chance of success onthe motion with or without that proof, in other words, and counsel's failure to provide it did notdeprive defendant of meaningful representation (see People v Pittman, 166 AD3d 1243, 1245-1246 [2018], lvdenied 32 NY3d 1176 [2019]).
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.