Opinion
863 KA 20-00575
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Cody J. FOX, Defendant-Appellant. (Appeal No. 1.)
ANTHONY BELLETIER, SYRACUSE, FOR DEFENDANT-APPELLANT. LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
ANTHONY BELLETIER, SYRACUSE, FOR DEFENDANT-APPELLANT.
LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of unlawful manufacture of methamphetamine in the second degree (§ 220.74 [2]). In appeal No. 3, he appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (§§ 110.00, 120.05 [2]).
With respect to all three appeals, insofar as defendant contends that his plea was not knowingly, intelligently, or voluntarily entered due to County Court's failure at the plea colloquy to adequately explain to him defense counsel's purported conflict of interest, we conclude that defendant's contention is unpreserved because he did not move to withdraw the guilty pleas or to vacate the judgments of conviction on that basis (see People v. Stafford , 195 A.D.3d 1466, 1467, 145 N.Y.S.3d 506 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 409, 175 N.E.3d 434 [2021] ; People v. Bentley , 191 A.D.3d 1392, 1392, 137 N.Y.S.3d 800 [4th Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 542, 170 N.E.3d 416 [2021] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Contrary to defendant's further contention, with respect to appeal No. 1, we conclude that the court did not abuse its discretion in summarily denying his motion to withdraw his plea on the ground that he was innocent of criminal possession of a weapon in the second degree. "[P]ermission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea" ( People v. Dale , 142 A.D.3d 1287, 1289, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] [internal quotation marks omitted]; see People v. Davis , 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ). Further, "[a] defendant is not entitled to withdraw [his] guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors" ( People v. Gleen , 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812 [4th Dept. 2010], lv denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010] [internal quotation marks omitted]; see People v. Alexander , 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802 [2002] ). To that end, " ‘a court does not abuse its discretion in denying a motion to withdraw a guilty plea where the defendant's allegations in support of the motion are belied by the defendant's statements during the plea proceeding’ " ( People v. Lewicki , 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ; see generally People v. Said , 105 A.D.3d 1392, 1393, 963 N.Y.S.2d 796 [4th Dept. 2013], lv denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 [2013] ).
Here, we conclude that the court did not abuse its discretion in summarily denying the motion because defendant's assertions of innocence are belied by his statements at the plea colloquy admitting that he unlawfully possessed a weapon on the day in question (see Lewicki , 118 A.D.3d at 1329, 987 N.Y.S.2d 755 ). Additionally, defendant's assertions of innocence were entirely unsubstantiated on the motion (see People v. Stutzman , 158 A.D.3d 1294, 1295-1296, 71 N.Y.S.3d 784 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; Gleen , 73 A.D.3d at 1444, 900 N.Y.S.2d 812 ). Moreover, even if defendant had submitted evidence supporting his assertion that he was innocent of the weapons charge because the gun had been sold by the manufacturer on a date when defendant was incarcerated, thereby precluding a finding that he had purchased the gun himself, such evidence would be completely irrelevant to whether defendant possessed the gun on the date in question (see Penal Law § 265.03 [3] ).
Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of the sentence with respect to all three appeals (see People v. Aliotta , 196 A.D.3d 1179, 1179, 147 N.Y.S.3d 917 [4th Dept. 2021] ; see generally People v. Thomas , 34 N.Y.3d 545, 562, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Desjardins , 196 A.D.3d 1177, 1177, 150 N.Y.S.3d 488 [4th Dept. 2021] ), we conclude that the bargained-for aggregate sentence is not unduly harsh or severe.
With respect to appeal No. 1, we note that the court merely misstated at sentencing that defendant was a second violent felony offender, rather than a second felony offender (see People v. Bradley , 196 A.D.3d 1168, 1170-1171, 150 N.Y.S.3d 491 [4th Dept. 2021] ; People v. Seymore , 188 A.D.3d 1767, 1770, 135 N.Y.S.3d 745 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 126, 167 N.E.3d 1261 [2021] ). Inasmuch as the certificate of conviction incorrectly reflects that defendant was sentenced as a second violent felony offender, it must be amended to reflect that he was sentenced as a second felony offender (see Bradley , 196 A.D.3d at 1171, 150 N.Y.S.3d 491 ). Additionally, we note that the certificate of conviction in appeal No. 1 incorrectly recites that defendant was convicted of criminal possession of a weapon in the second degree under Penal Law § 265.03 (1), and it must therefore be further amended to reflect that he was convicted of that crime under Penal Law § 265.03 (3) (see People v. Howard , 92 A.D.3d 1219, 1220, 937 N.Y.S.2d 807 [4th Dept. 2012], lv denied 19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436 [2012], reconsideration denied 19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012] ).
With respect to appeal No. 2, we note that at sentencing the court failed to pronounce orally a period of postrelease supervision. We therefore modify the judgment in appeal No. 2 by vacating the sentence, and we remit the matter to County Court for resentencing (see People v. Sparber , 10 N.Y.3d 457, 469-470, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ; People v. Stephens [appeal No. 2], 160 A.D.3d 1473, 1474, 72 N.Y.S.3d 891 [4th Dept. 2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ). We also note in appeal No. 2 that the court misstated at sentencing that defendant was being sentenced as a second felony offender, rather than as a second felony drug offender (see Penal Law § 70.70 [1] [b] ; see generally People v. Manners , 196 A.D.3d 1125, 1127, 149 N.Y.S.3d 743 [4th Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 427, 175 N.E.3d 452 [2021] ), and we therefore direct the court to correct that error on remittal.