Opinion
02-08-2024
The PEOPLE of the State of New York, Respondent, v. Jeffrey NUNNALLY, Appellant.
Erin C. Morigerato, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Erin C. Morigerato, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker, Fisher and Powers, JJ.
MEMORANDUM AND ORDER
Fisher, J.
Appeals (1) from a judgment of the Supreme Court (Kathleen B. Hogan, J.), rendered January 30, 2020 in Schenectady County, convicting defendant upon his plea of guilty of the crime of robbery in the second degree, and (2) from a judgment of said court, rendered January 30, 2020 in Schenectady County, which revoked defendant’s probation and imposed a sentence of imprisonment.
In 2018, defendant was convicted of attempted burglary in the second degree and sentenced to a five-year term of probation. Thereafter, in 2019, a violation of probation petition was filed against him and he was charged by indictment with robbery in the second degree. Following jury selection, defendant pleaded guilty to the indictment and purported to waive his right to appeal. In conjunction therewith, defendant entered an admission to a violation of probation, without a hearing. Prior to sentencing, defendant moved to withdraw the plea and admission on the basis that the guilty plea was the result of coercion, was entered under duress and he was innocent of the violation of probation. Supreme Court denied the motion and subsequently sentenced him pursuant to the terms of the negotiated plea agreement. In accordance therewith, defendant was sentenced, as a second violent felony offender, to a prison term of seven years to be followed by five years of postrelease supervision for his conviction of robbery in the second degree. In addition, Supreme Court revoked defendant’s probation and resentenced him to a prison term of five years to be followed by 1½ years of postrelease supervision for his prior conviction of attempted burglary in the second degree, to be served concurrently with the sentence imposed pursuant to his guilty plea. Defendant appeals.
[1, 2] Initially, as the People concede, the waiver of the right to appeal is invalid. "The written waiver executed by defendant contained overbroad and inaccurate language, and [Supreme] Court’s oral explanation of the waiver did not overcome these defects by ensuring that defendant understood that some appellate and collateral review survived" (People v. Thompson, 216 A.D.3d 1370, 1370–1371, 188 N.Y.S.3d 277 [3d Dept. 2023] [internal quotation marks and citations omitted]). As such, defendant’s challenge to the severity of the imposed sentence is not precluded. In any event, considering defendant’s -criminal history and that the greater of the concurrent terms imposed is the statutory minimum for a second violent felony offender, we are. unpersuaded that the sentence is either unduly harsh or severe (see CPL 470.15[6][b]; People v. Arlt, 219 A.D.3d 986, 987, 194 N.Y.S.3d 802 [3d Dept. 2023], lv denied 40 N;Y.3d 996, 197 N.Y.S.3d 119, 219 N.E.3d 880 [2023]; People v. Atutis, 214 A.D.3d 1264, 1265, 184 N.Y.S.3d 642 [3d Dept. 2023]).
[3, 4] As defendant’s motion to withdraw his plea asserted only that the plea was entered under duress and was the result of coercion, his challenge to the voluntariness of his plea is preserved only to this extent (see People v. Burnell, 183 A.D.3d 931, 933, 123 N.Y.S.3d 728 [3d Dept. 2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 827, 151 N.E.3d 508 [2020]; People v. Blanford, 179 A.D.3d.1388, 1391, 118 N.Y.S.3d 294 [3d Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020]). Consequently, Supreme Court’s statements regarding defendant’s sentencing exposure are not indicative of bias or coercion (see People v. Graham, 214 A.D.3d 1256, 1257, 184 N.Y.S.3d 635 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 760, 215 N.E.3d 1201 [2023]; People v. Dye, 210 A.D.3d 1192, 1193, 178 N.Y.S.3d 239 [3d Dept. 2022], lv denied 89 N.Y.3d 1072, 183 N.Y.S.3d 789, 204 N.E.3d 425 [2023]). Rather, these statements, as well as the pressures defendant may have felt from his family, "amount[ ] to no more than the type of situational coercion faced by many defendants who are offered a plea deal" (People v. Arlt, 219 A.D.3d at 989, 194 N.Y.S.3d 802 [internal quotation marks and citations omitted]; see People v. Walker, 173 A.D.3d 1561, 1562, 101 N.Y.S.3d 675 [3d Dept. 2019]). Nevertheless, to the extent defendant requests that we take corrective action in the interest of justice, we decline such invitation inasmuch as the record reflects that he made a knowing, voluntary and intelligent choice to plead guilty (see People v. Stevens, 217 A.D.3d 1280, 1280,191 N.Y.S.3d 835 [3d Dept. 2023], lv denied 40 N.Y.3d 952, 195 N.Y.S.3d 679, 217 N.E.3d 700 [2023]; People v. Hardie, 211 A.D.3d 1418, 1419–1420, 180 N.Y.S.3d 691 [3d Dept. 2022], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023]). "Accordingly, as defendant unequivocally pleaded guilty and admitted the factual allegations of the crime [and violation of probation], and because his litany of claims of coercion … [and] innocence … are unsupported or contradicted by the record, [Supreme] Court did not abuse its discretion in denying his motion to withdraw his plea" (People v. Atutis, 214 A.D.3d at 1266, 184 N.Y.S.3d 642 [internal quotation marks, brackets and citations omitted]; see People v. Nisby, 207 A.D.3d 876, 878, 172 N.Y.S.3d 190 [3d.Dept. 2022], lv denied 38 N.Y.3d 1189, 176 N.Y.S.3d 212, 197 N.E.3d 492 [2022]; People v. Rodriguez, 206 A.D.3d 1383, 1385, 170 N;Y.S.3d 359 [3d Dept. 2022]).
[5–7] Defendant’s contention that he received ineffective assistance of counsel, to the extent that it impacts the voluntariness of his plea, is similarly unpreserved as this did not form a basis for defendant’s motion to withdraw his, plea (see People v. Arlt, 219 A.D.3d at 988, 194 N.Y.S.3d 802). Defendant’s further contentions that counsel failed to, among other things, investigate his case or advise him of the implications of the plea and probation admission, pertain to matters outside of the record and are more properly the subject of a CPL article 440 motion (see People v. Faublas, 216 A.D.3d 1358, 1359, 189 N.Y.S.3d 828 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E,3d 1197 [2023]; People v. Loya, 215 A.D.3d 1181, 1183, 187 N.Y.S.3d 444 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 502, 213 N.E.3d 644 [2023]). Despite stating that defendant wished to withdraw his plea against the advice of counsel, our review of the record reveals that counsel did not take an adverse position to defendant’s interests, as counsel affirmed that he would continue to zealously represent defendant and then did so by filing and supporting the motion to withdraw defendant’s plea (see People v. Jones, 213 A.D.3d 1034, 1035, 182 N.Y.S.3d 810 [3d Dept. 2023]; People v. Salahuddin, 211 A.D.3d 1323, 1326, 180 N.Y.S.3d 383 [3d, Dept. 2022], lv denied 39 N.Y.3d 1113, 186 N.Y.S.3d 837, 208 N.E.3d 65 [2023]; People v. Hatcher, 211 A.D.3d 1236, 1241, 179 N.Y.S.3d 817 [3d Dept. 2022], lv denied 39 N.Y.3d 1078, 184 N.Y.S.3d 294, 204 N.E.3d 1075 [2023]). Our review further reveals that defendant had been afforded meaningful representation as he "receive[d] an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel" (People v. Hardie, 211 A.D.3d at 1420, 180 N.Y.S.3d 691 [internal quotation marks and citations omitted]). Defendant’s remaining arguments, to the extent not specifically addressed, have been reviewed and found to be lacking in merit.
Although defendant did advance such a motion pro se, his motion to appeal the denial of that motion was denied (see 2022 N.Y. Slip Op. 72929[U] [3d Dept. 2022]).
Egan Jr., J.P., Clark, Pritzker and Powers, JJ., concur.
ORDERED that the judgments are affirmed.