Opinion
No. 2018-01297 Ind. No. 100/17
08-17-2022
The People of the State of New York, respondent, v. Shaheed D. Fellows, appellant.
Vincent Gelardi, Rye Brook, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Vincent Gelardi, Rye Brook, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
HECTOR D. LASALLE, P.J. MARK C. DILLON, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered January 10, 2018, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence. By decision and order of this Court dated March 3, 2021, the matter was remitted to the County Court, Dutchess County, for further proceedings on the defendant's motion to withdraw his plea of guilty, and thereafter for the submission of a report by the County Court with respect to the motion and whether the defendant established entitlement to the withdrawal of his plea, and the appeal was held in abeyance in the interim (see People v Fellows, 192 A.D.3d 701). The County Court has filed its report.
ORDERED that the judgment is affirmed.
In a decision and order dated March 3, 2021, this Court remitted this matter to the County Court, Dutchess County, for further proceedings on the defendant's motion to withdraw his plea of guilty, based on the determination that his right to counsel was adversely affected, and that he received ineffective assistance of counsel, when, after having pleaded guilty, the defendant told the County Court that he wished to withdraw his plea, and his counsel took a position adverse to his (see People v Fellows, 192 A.D.3d 701). Upon remittitur, the defendant moved to withdraw his plea of guilty, and the court, in a report dated November 22, 2021, denied the motion.
The County Court properly denied the defendant's motion to withdraw his plea of guilty. The defendant's contention that he was coerced by his counsel into pleading guilty is belied by his statements under oath at the plea proceeding (see People v Jackson, 170 A.D.3d 1040; People v Duncan, 78 A.D.3d 1193, 1194). Moreover, the accurate statements by his counsel and the court as to his maximum possible sentence exposure if he were convicted after trial did not constitute coercion (see People v Legette, 191 A.D.3d 900, 901; People v Bhuiyan, 181 A.D.3d 699, 700; People v Solis, 111 A.D.3d 654, 655).
The record of the defendant's plea proceeding also belies his contention that he was not advised about the defenses of justification and intoxication (see People v Varela-Carias, 105 A.D.3d 780, 781). Furthermore, the People correctly contend that the evidence, namely video surveillance footage of the incident at issue, does not support the defendant's claim that either defense was viable in this case (see Matter of Y.K., 87 N.Y.2d 430, 433; People v Goetz, 68 N.Y.2d 96, 115; People v Juarez, 172 A.D.3d 1231, 1232).
The defendant was not deprived of effective assistance of counsel based on his counsel's accurate advice concerning the immigration consequences of his plea of guilty (see People v Galan, 116 A.D.3d 787, 789; People v Argueta, 46 A.D.3d 46, 51). Finally, the defendant's valid waiver of the right to appeal precludes review of his alleged claims of ineffective assistance of counsel which do not implicate the voluntariness of the plea (see People v Brown, 170 A.D.3d 878, 879).
LASALLE, P.J., DILLON, BARROS and CONNOLLY, JJ., concur.