Opinion
05-04-2017
The PEOPLE of the State of New York, Respondent, v. Kenneth R.W. CHAIRES, Appellant.
John A. Cirando, Syracuse, for appellant. William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), for respondent.
John A. Cirando, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), for respondent.
Before: PETERS, P.J., GARRY, DEVINE, MULVEY and AARONS, JJ.
MULVEY, J.
Appeal from a judgment of the County Court of Madison County (McDermott, J.), rendered May 28, 2014, convicting defendant upon his plea of guilty of the crime of rape in the first degree.
Defendant waived indictment and pleaded guilty to rape in the first degree as charged in a superior court information. The plea agreement included that defendant waive the right to appeal from his conviction and sentence. Prior to sentencing, defendant moved to withdraw his plea, based upon a claim of innocence. County Court denied the motion without a hearing and sentenced defendant to 10 years in prison, to be followed by 10 years of postrelease supervision. Defendant now appeals.
We affirm. Initially, we agree with defendant that he did not validly waive the right to appeal. Although County Court explained the right to appeal, we are unable to ascertain that defendant understood that he was required to waive the right as part of the plea and County Court did not inquire as to whether defendant had discussed the waiver with counsel. Although defendant also signed a written waiver, the waiver does not explain that the right to appeal is separate and distinct from the rights automatically forfeited by a guilty plea and there was no discussion with defendant or his attorney regarding whether defendant understood the written waiver. Accordingly, we conclude that defendant's waiver of the right to appeal was not knowing, intelligent and voluntary (see People v. Pope, 129 A.D.3d 1389, 1389–1390, 14 N.Y.S.3d 512 [2015] ; People v. Williford, 124 A.D.3d 1076, 1077, 1 N.Y.S.3d 551 [2015], lv. denied 25 N.Y.3d 1209, 16 N.Y.S.3d 532, 37 N.E.3d 1175 [2015] ).
We reject, however, defendant's contention that he should have been allowed to withdraw his guilty plea. "Whether to allow withdrawal of a guilty plea is left to the sound discretion of County Court, and will generally not be permitted absent some evidence of innocence, fraud or mistake in its inducement" (People v. Mitchell, 73 A.D.3d 1346, 1347, 901 N.Y.S.2d 405 [2010] [internal quotation marks and citations omitted], lv. denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] ; accord People v. Martin, 136 A.D.3d 1110, 1111, 25 N.Y.S.3d 397 [2016] ). A review of the plea colloquy reveals that County Court informed defendant of the ramifications of the plea, including the rights he would be relinquishing. Defendant confirmed his understanding of the plea agreement, that he had discussed the plea with counsel and that he was pleading guilty freely and voluntarily. Defendant thereafter admitted to engaging in conduct that constituted the crime at issue and these sworn admissions contradict his subsequent unsupported claims of innocence made in regard to the motion to withdraw the plea (see People v. Cadet, 144 A.D.3d 1335, 1336, 41 N.Y.S.3d 434 [2016], lv. denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ; People v. Crispell, 136 A.D.3d 1121, 1122, 24 N.Y.S.3d 454 [2016], lv. denied 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] ).
Defendant's claim that his plea was involuntary because he was denied the effective assistance of counsel is unpreserved for our review, in light of his failure to move to withdraw his plea on this ground (see People v. Simpson, 146 A.D.3d 1175, 1176, 47 N.Y.S.3d 477 [2017] ; People v. Toledo, 144 A.D.3d 1332, 1333, 40 N.Y.S.3d 680 [2016] ). In any event, the record reflects that counsel's representation was meaningful, inasmuch as counsel negotiated an advantageous plea deal that greatly reduced defendant's sentencing exposure and defendant acknowledged that he was satisfied with counsel's services and that he had been provided ample time to discuss the plea with him (see People v. Sylvan, 108 A.D.3d 869, 870, 969 N.Y.S.2d 578 [2013], lv. denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ). Defendant's contention that counsel was ineffective for not filing a written motion to withdraw his plea is based on matters outside the record, and is therefore more properly the subject of a CPL article 440 motion (see People v. Hernandez, 140 A.D.3d 1521, 1523, 34 N.Y.S.3d 698 [2016], lv. denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ).
As to counsel's lack of participation in defendant's pro se motion to withdraw his plea, it is well settled that assigned counsel has no duty to participate in such a motion (see People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574 [2013], lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013] ; People v. Trombley, 91 A.D.3d 1197, 1202, 937 N.Y.S.2d 665 [2012], lv. denied 21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ), and we discern no deprivation of the effective assistance of counsel under the circumstances presented here. To the extent that certain remarks made by defendant prior to sentencing can be construed as a request for new counsel, no conflict of interest is apparent on the record and, under the circumstances presented, County Court was not obligated to assign substitute counsel before deciding defendant's motion to withdraw his plea (see People v. Tyler, 130 A.D.3d 1383, 1385, 14 N.Y.S.3d 570 [2015] ; People v. Pimentel, 108 A.D.3d at 862–863, 969 N.Y.S.2d 574 ). Finally, having reviewed the record and, in light of the seriousness of the crime, we discern neither an abuse of discretion nor any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Burnett, 93 A.D.3d 993, 994, 939 N.Y.S.2d 773 [2012] ; People v. Evans, 81 A.D.3d 1040, 1041–1042, 916 N.Y.S.2d 302 [2011], lv. denied 16 N.Y.3d 894, 926 N.Y.S.2d 30, 949 N.E.2d 978 [2011] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, DEVINE and AARONS, JJ., concur.