Opinion
2011-12-30
The PEOPLE of the State of New York, Respondent, v. Loretta JACKSON, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon her plea of guilty of robbery in the second degree (Penal Law § 160.10[1] ). We conclude that there is no merit to defendant's contention that her waiver of the right to appeal was invalid. “[T]he record establishes that County Court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [internal quotation marks omitted] ). “Although the [further] contention of defendant that [she] was coerced into pleading guilty and thus that the plea was not voluntarily entered survives the waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review” ( People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587, lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449). In any event, that contention lacks merit. “[I]t is well settled that ‘[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if he [or she] decides to proceed to trial’ ” but, here, the statements and actions of the court during the pre-plea proceeding did not amount to impermissible coercion ( People v. Boyde, 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570, lv. denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219). Moreover, “defendant's fear that a harsher sentence would be imposed if defendant were convicted after trial does not constitute coercion” ( People v. Newman [appeal No. 1], 231 A.D.2d 875, 648 N.Y.S.2d 62, lv. denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508; see Boyde, 71 A.D.3d at 1443, 897 N.Y.S.2d 570).
Defendant's contention that her plea was not knowing, intelligent and voluntary because she did not recite the underlying facts of the crime “is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by the valid waiver of the right to appeal” ( People v. McCarthy, 83 A.D.3d 1533, 1534, 921 N.Y.S.2d 755, lv. denied 17 N.Y.3d 819, 929 N.Y.S.2d 808, 954 N.E.2d 99 [internal quotation marks omitted] ). Further, that challenge “is unpreserved for our review inasmuch as [she] did not move to withdraw the plea or to set aside the judgment of conviction on that ground” ( id.; see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5). “In any event, there is no merit to defendant's challenge because ‘there is no requirement that defendant recite the underlying facts of the crime to which [she] is pleading guilty’ ” ( McCarthy, 83 A.D.3d at 1534, 921 N.Y.S.2d 755). “ ‘The record establishes that defendant admitted the essential elements of the ... [crime,] and thus [her] factual allocution is legally sufficient’ ” ( People v. Dorrah, 50 A.D.3d 1619, 856 N.Y.S.2d 406, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 394, 894 N.E.2d 658). We also conclude that there is no merit to the contention of defendant that the court's temporary misidentification of her accomplice amounted to an error that rendered the plea allocution meaningless, inasmuch as defendant confirmed the actual identity of her accomplice at the court's prompting.
Finally, “[t]he contention of defendant that [she] was denied effective assistance of counsel survives the plea and waiver of the right to appeal only to the extent that ‘[she] contends that [her] plea was infected by the allegedly ineffective assistance and that [she] entered the plea because of [defense counsel's] allegedly poor performance’ ... We conclude, however, that defendant's contention lacks merit to that extent” ( People v. Jacques, 79 A.D.3d 1812, 1812–1813, 913 N.Y.S.2d 609, lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979). “ ‘In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of [defense] counsel’ ..., and that is the case here” ( People v. Garner, 86 A.D.3d 955, 956, 926 N.Y.S.2d 796, quoting People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.