Opinion
No. 2015–09464.
08-02-2017
The PEOPLE, etc., respondent, v. Myles HARRIS, appellant.
John P. Savoca, Yorktown, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Laurie Sapakoff of counsel), for respondent.
John P. Savoca, Yorktown, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Laurie Sapakoff of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zuckerman, J., at plea; Everett, J., at sentencing), rendered August 27, 2015, convicting him of attempted assault in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver of his right to appeal precludes review of his claim that his pre-plea request to relieve assigned counsel and to substitute new counsel was improperly denied (see People v. Weston, 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ), and his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Guillebeaux, 136 A.D.3d 1055, 25 N.Y.S.3d 613 ).
However, the defendant's claim regarding the voluntariness of his plea survives his waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Haywood, 122 A.D.3d 769, 770, 996 N.Y.S.2d 137 ). The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3] ; People v. Douglas, 83 A.D.3d 1092, 921 N.Y.S.2d 324 ). Contrary to the defendant's contention, the County Court providently exercised its discretion in denying, without a hearing, his motion to withdraw his plea of guilty. The record establishes that the defendant knowingly, voluntarily, and intelligently entered a plea of guilty (see People v. Sougou, 26 N.Y.3d 1052, 1054–1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ; People v. Rodriguez, 142 A.D.3d 1189, 1189–1190, 38 N.Y.S.3d 224 ; People v. Jemmott, 125 A.D.3d 1005, 1006, 5 N.Y.S.3d 447 ). The defendant's contentions that he was coerced by his attorney into taking the plea and he was not mentally stable when he accepted the plea are belied by the record (see People v. Raymond, 150 A.D.3d 766, 51 N.Y.S.3d 428 ; People v. Ward, 140 A.D.3d 903, 32 N.Y.S.3d 648 ).
LEVENTHAL, J.P., BARROS, CONNOLLY and BRATHWAITE NELSON, JJ., concur.