Opinion
1059 KA 18-01796
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Jerry J. GRAY, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25 [2] ). We affirm.
County Court properly denied defendant's motion to withdraw his plea. Defendant's current allegations of ineffective assistance of counsel and duress are unsupported by the record and are belied by the plea colloquy, during which defendant averred that he had sufficiently discussed the case with his lawyer, that he was satisfied with his lawyer's services, that he was not being "forced ..., threatened ... or coerced ... into pleading guilty," and that he was pleading guilty "voluntarily and of [his] own free will" (see People v. Riley , 182 A.D.3d 998, 999, 120 N.Y.S.3d 909 [4th Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 392, 152 N.E.3d 1194 [2020] ; People v. Gerena , 174 A.D.3d 1428, 1429-1430, 106 N.Y.S.3d 477 [4th Dept. 2019], lv denied 34 N.Y.3d 981, 113 N.Y.S.3d 633, 137 N.E.3d 3 [2019] ). Defendant's further contention that his plea was not knowing, intelligent, and voluntary because he did not understand that a guilty plea would terminate the discovery process is unpreserved for appellate review inasmuch as he did not raise that particular argument in his motion to withdraw the plea (see People v. Pittman , 166 A.D.3d 1243, 1245, 86 N.Y.S.3d 347 [3d Dept. 2018], lv denied 32 N.Y.3d 1176, 97 N.Y.S.3d 601, 121 N.E.3d 228 [2019] ). In any event, that unpreserved assertion is contradicted by the allegations in defendant's own pro se motion to withdraw his plea.
Finally, although we agree with defendant that he did not validly waive his right to appeal (see People v. Thomas , 34 N.Y.3d 545, 566-567, 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. Shantz , 186 A.D.3d 1076, 1077, 127 N.Y.S.3d 383 [4th Dept. 2020] ), we nevertheless conclude that the sentence is not unduly harsh or severe.