Opinion
1303 KA 15–01411
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Billy J. RIVERA, Defendant–Appellant.
EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, TROUTMAN, 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 murder in the second degree ( Penal Law § 125.25 [1] ). Contrary to defendant's contention, Supreme Court "did not abuse its discretion in denying defendant's motion to withdraw the plea on the ground of coercion without conducting a hearing inasmuch as the record is devoid of a genuine question of fact as to the plea's voluntariness" ( People v. Ivey, 98 A.D.3d 1230, 1231, 951 N.Y.S.2d 279 [4th Dept. 2012], lv denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013] [internal quotation marks omitted] ).
Defendant's further contention that defense counsel was ineffective because he coerced defendant into pleading guilty is belied by defendant's statements during the plea colloquy (see 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] ; see also People v. Newkirk, 133 A.D.3d 1364, 1364, 20 N.Y.S.3d 507 [4th Dept. 2015], lv denied 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 [2016] ). Moreover, defendant "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effective assistance of [defense] counsel" ( People v. Days, 150 A.D.3d 1622, 1625, 55 N.Y.S.3d 544 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] [internal quotation marks omitted] ). To the extent that defendant contends that certain conversations and interactions with defense counsel gave rise to ineffective assistance of counsel and also established that his plea was involuntary, such contentions "are based on matters outside the record and must therefore be raised by way of a motion pursuant to CPL article 440" ( Dale, 142 A.D.3d at 1290, 38 N.Y.S.3d 333 [internal quotation marks omitted]; see People v. Spoor, 148 A.D.3d 1795, 1797, 50 N.Y.S.3d 232 [4th Dept. 2017], lv denied 29 N.Y.3d 1134, 64 N.Y.S.3d 684, 86 N.E.3d 576 [2017] ).