Opinion
11-20-2015
The PEOPLE of the State of New York, Respondent, v. Brenda M. NEWKIRK, Defendant–Appellant.
David P. Elkovitch, Auburn, for Defendant–Appellant. Brenda M. Newkirk, Defendant–Appellant Pro Se. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
David P. Elkovitch, Auburn, for Defendant–Appellant.
Brenda M. Newkirk, Defendant–Appellant Pro Se.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DeJOSEPH, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting her upon her guilty plea of murder in the second degree (Penal Law § 125.25 [1] ). We reject defendant's contentions in her main and pro se supplemental briefs that County Court abused its discretion in denying her request to withdraw the guilty plea. " ‘Permission 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. Pillich, 48 A.D.3d 1061, 1061, 849 N.Y.S.2d 817, lv. denied 11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105 ). Although defendant contends in her main brief that she was innocent, the record establishes that she admitted the elements of murder in the second degree during the plea allocution and did not make any claim to the court at that time that she was innocent (see People v. Hobby, 83 A.D.3d 1536, 1536, 921 N.Y.S.2d 580, lv. denied 17 N.Y.3d 859, 932 N.Y.S.2d 24, 956 N.E.2d 805 ; People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 ). Defendant's contention in her pro se supplemental brief that defense counsel coerced her into pleading guilty "is belied by defendant's statement during the plea colloquy that the plea was not the result of any threats, pressure or coercion" (People v. Campbell, 62 A.D.3d 1265, 1266, 878 N.Y.S.2d 537, lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 ; see Sparcino, 78 A.D.3d at 1509, 911 N.Y.S.2d 523 ).
Defendant further contends in her main and pro se supplemental briefs that her plea was not knowingly, intelligently, or voluntarily entered. We reject that contention. "Although the initial statements of defendant during the factual allocution may have negated the essential element of [her] intent to cause death, [her] further statements removed any doubt regarding that intent" (People v. Trinidad, 23 A.D.3d 1060, 1061, 804 N.Y.S.2d 876, lv. denied 6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168 ; see People v. Theall, 109 A.D.3d 1107, 1108, 971 N.Y.S.2d 753, lv. denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 ).
Contrary to defendant's contention in her pro se supplemental brief, she was not deprived of the effective assistance of counsel. Defendant received an advantageous plea, and "nothing in the record casts doubt on the apparent effectiveness of counsel" (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ; see People v. Pitcher, 126 A.D.3d 1471, 1473, 6 N.Y.S.3d 352, lv. denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 ).
Defendant's challenge in her pro se supplemental brief to the sufficiency of the evidence before the grand jury is forfeited by her guilty plea (see People v. Milliman, 122 A.D.3d 1437, 1438, 996 N.Y.S.2d 451 ; People v. Dickerson, 66 A.D.3d 1371, 1372, 887 N.Y.S.2d 387, lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 ), as is her challenge to evidentiary errors during the grand jury proceeding (see People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 ).
Defendant's contention in her pro se supplemental brief that the People failed to disclose Brady material survives her guilty plea (see People v. DeLaRosa, 48 A.D.3d 1098, 1098–1099, 851 N.Y.S.2d 775, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 488, 890 N.E.2d 251 ), but we nevertheless conclude that her contention is without merit inasmuch as she has failed to identify any evidence that was not disclosed (see generally People v. Johnson, 60 A.D.3d 1496, 1497, 876 N.Y.S.2d 282, lv. denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088 ; People v. Terry, 19 A.D.3d 1039, 1040, 797 N.Y.S.2d 670, lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747 ).
Defendant contends in her pro se supplemental brief that the court should have granted her motion to suppress her statements and evidence seized during the search of her computer. We conclude that those contentions were forfeited by defendant's guilty plea inasmuch as she "pleaded guilty before the court issued a decision on [her] suppression motion" (People v. Gillett, 105 A.D.3d 1444, 963 N.Y.S.2d 906 ; see CPL 710.70[2] ). We reject defendant's contention in her pro se supplemental brief that the sentence is unduly harsh and severe.
Finally, we have reviewed the remaining contentions in defendant's pro se supplemental brief and, to the extent that they are properly before us in the context of defendant's guilty plea, we conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.