Opinion
1160 KA 12-01812
11-14-2014
The PEOPLE of the State of New York, Respondent, v. Mikel R. ODLE, Defendant–Appellant.
The Glennon Law Firm, P.C., Rochester (Peter J. Glennon of Counsel), for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown, for Respondent.
The Glennon Law Firm, P.C., Rochester (Peter J. Glennon of Counsel), for Defendant–Appellant.
Cindy F. Intschert, District Attorney, Watertown, for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of, inter alia, murder in the second degree (Penal Law § 125.25[1] ), defendant contends that he did not knowingly, voluntarily and intelligently waive his right to appeal. We reject that contention. Defendant waived his right to appeal both orally and in writing, and we conclude that defendant's “responses during the plea colloquy and his execution of a written waiver of the right to appeal establish that he intelligently, knowingly, and voluntarily waived his right to appeal” (People v. Rumsey, 105 A.D.3d 1448, 1449, 963 N.Y.S.2d 909, lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 ).
Defendant further contends that his plea was not knowingly, voluntarily, and intelligently entered and thus that County Court erred in denying his motion to withdraw his plea. We reject that contention. “Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea” (People v. Robertson, 255 A.D.2d 968, 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188 ; see People v. Garner, 86 A.D.3d 955, 955, 926 N.Y.S.2d 796 ). We perceive no abuse of discretion here. Defendant's assertions that he was “threatened” and “coerced” into accepting the plea are belied by his statements during the plea proceeding (see People v. McNew, 117 A.D.3d 1491, 1492, 984 N.Y.S.2d 529 ; People v. Witkop, 114 A.D.3d 1242, 1243, 980 N.Y.S.2d 674, lv. denied 23 N.Y.3d 1069, 994 N.Y.S.2d 328, 18 N.E.3d 1149 ). Moreover, “[t]he fact that defendant may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced” (People v. Villone, 302 A.D.2d 866, 866, 753 N.Y.S.2d 778, lv. denied 4 N.Y.3d 768, 792 N.Y.S.2d 12, 825 N.E.2d 144 ; see People v. Zimmerman, 100 A.D.3d 1360, 1362, 953 N.Y.S.2d 427, lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 ). Defendant's challenge to the sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal (see People v. Rosado, 70 A.D.3d 1315, 1316, 894 N.Y.S.2d 703, lv. denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 ). In any event, defendant also failed to preserve that challenge for our review by moving to withdraw his plea on that ground, and the narrow exception to the preservation doctrine does not apply here (see People v. Smith, 43 A.D.3d 474, 475, 842 N.Y.S.2d 454, lv. denied 9 N.Y.3d 1009, 850 N.Y.S.2d 397, 880 N.E.2d 883 ; People v. Anaya, 8 A.D.3d 33, 33, 777 N.Y.S.2d 636, lv. denied 3 N.Y.3d 670, 784 N.Y.S.2d 8, 817 N.E.2d 826 ).Finally, defendant contends that he was denied effective assistance of counsel. To the extent that defendant's contention 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 it lacks merit. The record establishes that defendant “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v.
Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.