Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Monroe BIBBS, Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4] ). We reject defendant's contention that the waiver of the right to appeal is invalid. We conclude that "[Supreme] Court did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea" (People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790, lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and that the court engaged defendant "in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v. Burt, 101 A.D.3d 1729, 1730, 955 N.Y.S.2d 906, lv. denied 20 N.Y.3d 1060, 962N.Y.S.2d 610, 985 N.E.2d 920 [internal quotation marks omitted] ).
Defendant's contention that the court erred in denying his motion to withdraw the plea survives his valid waiver of the right to appeal (see People v. Montgomery, 63 A.D.3d 1635, 1635–1636, 880 N.Y.S.2d 811, lv. denied 13 N.Y.3d 798, 887 N.Y.S.2d 548, 916 N.E.2d 443 ), but we conclude that the court properly denied that motion. "The decision to permit a defendant to withdraw a guilty plea rests in the sound discretion of the court" (People v. Smith, 122 A.D.3d 1300, 1301–1302, 995 N.Y.S.2d 881, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [internal quotation marks omitted]; see People v. Frederick, 45 N.Y.2d 520, 524–525, 410 N.Y.S.2d 555, 382 N.E.2d 1332 ). Here, defendant's claims of coercion are belied by his statements during the plea colloquy (see People v. Merritt, 115 A.D.3d 1250, 1251, 982 N.Y.S.2d 276 ), and we conclude that the guilty plea was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ). To the extent that defendant's contention that he was denied effective assistance of counsel when counsel failed to seek an adjournment of the trial and warned defendant that he faced the maximum sentence if convicted after trial survives his guilty plea and valid waiver of the right to appeal (see People v. Strickland, 103 A.D.3d 1178, 1178, 958 N.Y.S.2d 640 ), we conclude that his contention lacks merit (see People v. Mann, 32 A.D.3d 865, 866, 821 N.Y.S.2d 616, lv. denied 8 N.Y.3d 847, 830 N.Y.S.2d 706, 862 N.E.2d 798 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.