Opinion
421 KA 16–01617
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Michael MORRIS, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted murder in the first degree ( Penal Law §§ 110.00, 125.27[1][a] [viii] ; [b] ) and assault in the first degree (§ 120.10[1] ). We previously held the case, reserved decision and remitted the matter to County Court for a ruling on that part of defendant's postplea pro se motion seeking substitution of counsel ( People v. Morris, 176 A.D.3d 1635, 1636, 107 N.Y.S.3d 924 [4th Dept. 2019] ).
Contrary to defendant's contention, we conclude that the court, upon remittal, properly denied the motion insofar as it sought substitution of counsel and did not err in failing to make a minimal inquiry into defendant's objections with respect to defense counsel. Defendant "failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry" ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; see People v. Konovalchuk, 148 A.D.3d 1514, 1516, 50 N.Y.S.3d 193 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ). Indeed, defendant's allegations that defense counsel "tricked" him into pleading guilty are belied by the record (see People v. Lewicki, 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ).
We reject defendant's further contention that the court should have granted his motion to withdraw his plea. It is well settled that " ‘[p]ermission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea’ " ( People v. Leach, 119 A.D.3d 1429, 1430, 989 N.Y.S.2d 761 [4th Dept. 2014], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ). Here, defense counsel's misstatements to defendant regarding his sentence are not, standing alone, " ‘dispositive’ of the issue whether defendant's plea was knowingly and voluntarily entered" ( People v. Johnson, 24 A.D.3d 1259, 1259, 808 N.Y.S.2d 515 [4th Dept. 2005], lv denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006] ; see People v. Bryant, 1 A.D.3d 966, 966–967, 767 N.Y.S.2d 336 [4th Dept. 2003] ). The record establishes that the court explained defendant's sentence during the plea colloquy, and defendant acknowledged that he was entering the plea knowingly and voluntarily. Defendant's related claims of coercion and trickery are unsupported by the record (see Leach, 119 A.D.3d at 1430, 989 N.Y.S.2d 761 ; People v. Campbell, 62 A.D.3d 1265, 1266, 878 N.Y.S.2d 537 [4th Dept. 2009], lv denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009] ). Additionally, while the record reflects that defendant had a history of requiring speech and language therapy, as well as behavioral issues, there is nothing in the record to suggest that defendant " ‘lacked the capacity to understand the plea proceeding’ " ( People v. Smith, 37 A.D.3d 1141, 1142, 829 N.Y.S.2d 375 [4th Dept. 2007], lv denied 9 N.Y.3d 851, 840 N.Y.S.2d 777, 872 N.E.2d 890 [2007], reconsideration denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900 [2007] ; see People v. Smith, 5 A.D.3d 1095, 1095, 773 N.Y.S.2d 718 [4th Dept. 2004], lv denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478 [2004] ; see also People v. Scott, 144 A.D.3d 1597, 1598, 40 N.Y.S.3d 689 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ). The record establishes that defendant was "examined and found to be competent prior to the plea proceeding and that the plea colloquy was thorough" ( People v. Nudd, 53 A.D.3d 1115, 1115, 861 N.Y.S.2d 879 [4th Dept. 2008], lv denied 11 N.Y.3d 834, 868 N.Y.S.2d 608, 897 N.E.2d 1092 [2008] ). We therefore conclude that defendant "knowingly and intelligently, with neither confusion nor coercion present ..., and with a full opportunity to assess the advantages and disadvantages of a plea versus a trial ..., made his election" ( People v. Johnson, 122 A.D.3d 1324, 1325, 995 N.Y.S.2d 888 [4th Dept. 2014] [internal quotation marks omitted] ).
To the extent that defendant's contention that he was denied effective assistance of counsel survives his guilty plea, we conclude that it lacks merit. Defendant was afforded meaningful representation inasmuch as he "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Oliver [appeal No. 2], 162 A.D.3d 1722, 1723, 79 N.Y.S.3d 812 [4th Dept. 2018] ; see Campbell, 62 A.D.3d at 1266, 878 N.Y.S.2d 537 ). Contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe.
Finally, we have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.