Opinion
950 KA 12-01128.
10-02-2015
The PEOPLE of the State of New York, Respondent, v. Trameil GREEN, Also Known As Marcus Truitt, Also Known As Alfred Parker, Defendant–Appellant. (Appeal No. 1.).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo–McLaughlin Of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo–McLaughlin Of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15 [3 ] ). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (§ 130.35[1] ), and predatory sexual assault (§ 130.95[2] ).
Initially, we agree with defendant in each appeal that his waiver of the right to appeal was invalid because “ ‘the minimal inquiry made by [Supreme] Court was insufficient to establish that the court engage[d] defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Carrasquillo, 130 A.D.3d 1498, 1498, 11 N.Y.S.3d 499 ; see People v. Harris, 121 A.D.3d 1423, 1424, 995 N.Y.S.2d 410, lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 ). Nevertheless, we reject defendant's contention in each appeal that the sentence is unduly harsh and severe.
Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution in appeal No. 1, because “defendant's motion to withdraw his plea was made on clearly different grounds” (People v. Carter, 254 A.D.2d 202, 202, 679 N.Y.S.2d 568, lv. denied 93 N.Y.2d 871, 689 N.Y.S.2d 433, 711 N.E.2d 647 ; see People v. Spears, 106 A.D.3d 1534, 1535, 964 N.Y.S.2d 452, affd. 24 N.Y.3d 1057, 999 N.Y.S.2d 818, 24 N.E.3d 1082 ). This case does not fall within the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).
With respect to appeal Nos. 1 and 2, we reject defendant's contention that the court erred in denying his motion to withdraw his plea. Although defendant contends that his plea was not knowing, voluntary, and intelligent because the court failed to inquire whether he was under the influence of psychotropic medications, we note that, here, defendant “was by all indications perfectly lucid while the plea proceedings were in progress” (People v. Royster, 40 A.D.3d 885, 887, 835 N.Y.S.2d 732, lv. denied 9 N.Y.3d 881, 842 N.Y.S.2d 793, 874 N.E.2d 760 ; see People v. Lear, 19 A.D.3d 1002, 1002, 796 N.Y.S.2d 293, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 ; People v. McCann, 289 A.D.2d 703, 703–704, 733 N.Y.S.2d 804 ). Defendant's further contention that his plea of guilty was coerced by defense counsel is “belied by [his] statement during the plea proceeding that [he] was not threatened, coerced or otherwise influenced against [his] will into pleading guilty” (People v. Irvine, 42 A.D.3d 949, 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 [internal quotation marks omitted] ). To the extent defendant contends that he was under the influence of psychotropic drugs when he entered his plea of guilty and that he was coerced into pleading guilty by defense counsel, those contentions are “based on matters outside the record and must therefore be raised by way of a motion pursuant to CPL article 440” (People v. Merritt, 115 A.D.3d 1250, 1251, 982 N.Y.S.2d 276 ).
Contrary to defendant's contention, he was not deprived of effective assistance of counsel at sentencing based on his attorney's refusal to incorporate the arguments raised by defendant at sentencing into the written motion to withdraw defendant's plea (see e.g. People v. Adams, 66 A.D.3d 1355, 1356, 886 N.Y.S.2d 525, lv. denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 ; People v. Klumpp, 269 A.D.2d 798, 799, 703 N.Y.S.2d 424, lv. denied 94 N.Y.2d 922, 708 N.Y.S.2d 361, 729 N.E.2d 1160 ). We also conclude that defense counsel did not take a position adverse to defendant at sentencing, or become a witness against him (see People v. Collins, 85 A.D.3d 1678, 1679, 925 N.Y.S.2d 775, lv. denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 ; cf. People v. Lawrence, 27 A.D.3d 1091, 1091–1092, 812 N.Y.S.2d 199 ). Indeed, we note that defense counsel urged the court to consider defendant's pro se arguments.
Finally, we note in appeal No. 2 that the certificate of conviction incorrectly reflects that defendant was convicted of predatory sexual assault under Penal Law § 131.95(2), and it must therefore be amended to reflect that he was convicted under Penal Law § 130.95(2) (see People v. Holmes, 104 A.D.3d 1288, 1290, 960 N.Y.S.2d 831, lv. denied 22 N.Y.3d 1041, 981 N.Y.S.2d 375, 4 N.E.3d 387 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.