Opinion
276 KA 19-00589
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Alex GONZALES, Defendant-appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25 [2] ), defendant contends that his waiver of the right to appeal is invalid and that County Court should have granted his request at sentencing to withdraw his plea. We agree with defendant that his waiver is unenforceable because "[t]he written waiver of the right to appeal signed by defendant [at the time of the plea] and the verbal waiver colloquy conducted by [the court] together improperly characterized the waiver as ‘an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief’ " ( People v. McMillian , 185 A.D.3d 1420, 1421, 127 N.Y.S.3d 669 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; see People v. Harlee , 187 A.D.3d 1586, 1587, 131 N.Y.S.3d 760 [4th Dept. 2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 333, 159 N.E.3d 1100 [2020] ).
Nevertheless, we perceive no basis in the record to conclude that the court abused its discretion in denying defendant's request to withdraw his plea (see People v. Morris , 78 A.D.3d 1613, 1614, 910 N.Y.S.2d 712 [4th Dept. 2010], lv denied 17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101 [2011] ; see generally People v. Tolbert , 185 A.D.3d 1513, 1514, 125 N.Y.S.3d 917 [4th Dept. 2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 521, 158 N.E.3d 538 [2020] ). Although defendant contends that the factual colloquy was insufficient inasmuch as he did not admit the elements of the crime to which he pleaded guilty, he "pleaded guilty to a lesser crime than that charged in the indictment, and thus no factual colloquy was required" ( People v. Reynolds , 295 A.D.2d 986, 987, 743 N.Y.S.2d 766 [4th Dept. 2002], lv denied 98 N.Y.2d 713, 749 N.Y.S.2d 10, 778 N.E.2d 561 [2002] ; see People v. Johnson , 23 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 [2014] ). To the extent that defendant contends that his plea was involuntary because it was coerced by defense counsel, such contention is belied by the record (see People v. Davis , 129 A.D.3d 1613, 1614, 11 N.Y.S.3d 778 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; People v. Merritt , 115 A.D.3d 1250, 1251, 982 N.Y.S.2d 276 [4th Dept. 2014], lv denied 30 N.Y.3d 1021, 70 N.Y.S.3d 453, 93 N.E.3d 1217 [2017], reconsideration denied 35 N.Y.3d 1068, 129 N.Y.S.3d 385, 152 N.E.3d 1187 [2020] ). Indeed, during the plea colloquy, defendant said that he was pleading guilty voluntarily and that no one had threatened, forced or coerced him into pleading guilty.