Opinion
2015-10-7
The PEOPLE, etc., respondent, v. Peter INNOCENT, appellant.
Steven A. Feldman, Uniondale, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.
Steven A. Feldman, Uniondale, N.Y., for appellant.Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Gregory Musso on the brief), for respondent.
, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 3, 2011, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's waiver of his right to appeal was invalid ( see People v. Jackson, 114 A.D.3d 807, 808, 979 N.Y.S.2d 704; People v. Salgado, 111 A.D.3d 859, 975 N.Y.S.2d 172; People v. Nugent, 109 A.D.3d 625, 625–626, 970 N.Y.S.2d 634; People v. Boustani, 300 A.D.2d 313, 314, 752 N.Y.S.2d 683). In any event, the defendant's challenge to the voluntariness of his plea of guilty survives a valid waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371; People v. Griffin, 119 A.D.3d 605, 606, 987 N.Y.S.2d 905).
The Supreme Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty ( seeCPL 220.60[3]; People v. Alexander, 97 N.Y.2d 482, 483–484, 743 N.Y.S.2d 45, 769 N.E.2d 802). Contrary to the defendant's contention, the court's failure to advise the defendant of his right to have counsel assigned by the court if he was financially unable to retain counsel did not render his guilty plea unknowing or involuntary. A plea of guilty “will not be invalidated ‘solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea’ ” (People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 quoting People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170). Here, the defendant acknowledged that he understood that by pleading guilty he was waiving certain federal constitutional rights ( see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274). Furthermore, the defendant's contention that he was coerced into pleading guilty by his former attorney is belied by his statements during the plea proceeding, in which he acknowledged under oath that he was satisfied with his counsel's representation, that he had not been forced into pleading guilty, and that he was entering the plea of his own free will ( see People v. Bennett, 115 A.D.3d 973, 974, 982 N.Y.S.2d 554). The defendant's postplea assertion of innocence based upon the affirmative defense of renunciation ( seePenal Law § 40.10[1] ) is unsupported by the record ( see People v. Ozarowski, 38 N.Y.2d 481, 492, 381 N.Y.S.2d 438, 344 N.E.2d 370) and did not afford a basis for withdrawal of the guilty plea. Since the defendant's motion to withdraw his plea of guilty was premised on unsubstantiated and conclusory allegations belied by the record, the Supreme Court properly denied the motion without conducting a hearing ( see People v. Shorter, 106 A.D.3d 1115, 966 N.Y.S.2d 184; People v. Haywood, 97 A.D.2d 446, 467 N.Y.S.2d 413; People v. Douglas, 83 A.D.3d 1092, 1093, 921 N.Y.S.2d 324).