Opinion
106894
02-15-2018
The PEOPLE of the State of New York, Respondent, v. Kevin POOLER, Appellant.
Linda B. Johnson, East Greenbush, for appellant. Joel E. Abelove, District Attorney, Troy (Katy M. Moryl of counsel), for respondent.
Linda B. Johnson, East Greenbush, for appellant.
Joel E. Abelove, District Attorney, Troy (Katy M. Moryl of counsel), for respondent.
Before: Garry, P.J., McCarthy, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.Appeal from a judgment of the Supreme Court (McGrath, J.), rendered May 7, 2014 in Rensselear County, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to robbery in the first degree and waived his right to appeal. Under the terms of the plea agreement, he was to be sentenced to five years in prison, followed by five years of postrelease supervision. Prior to sentencing, he made a pro se motion to withdraw his guilty plea that was denied by Supreme Court. Defendant was subsequently sentenced in accordance with the terms of the plea agreement, and he now appeals.
Initially, the People concede and we agree that defendant's appeal waiver is invalid inasmuch as he was not advised of the separate and distinct nature of the right to appeal and did not indicate to Supreme Court that he understood its many ramifications (see People v. Dumas, 155 A.D.3d 1256, 1256, 63 N.Y.S.3d 906 [2017] ; People v. Loika, 153 A.D.3d 1516, 1517, 61 N.Y.S.3d 711 [2017] ). Consequently, the appeal waiver does not preclude defendant's challenge to the voluntariness of his guilty plea or to the effectiveness of his counsel.
Defendant maintains that Supreme Court should have made further inquiry before denying his motion to withdraw his guilty plea. Specifically, he asserts that his guilty plea was not knowing, voluntary and intelligent because he was not in the right mental state during the plea proceedings, was not adequately advised of possible defenses and was lied to by counsel. "Whether to permit a defendant to withdraw his or her plea of guilty is left to the sound discretion of [the trial c]ourt, and withdrawal will generally not be permitted absent some evidence of innocence, fraud or mistake in its inducement" ( People v. Beaver, 150 A.D.3d 1325, 1325, 54 N.Y.S.3d 712 [2017] [internal quotation marks and citations omitted]; see People v. Charleston, 142 A.D.3d 1248, 1250, 38 N.Y.S.3d 278 [2016] ). Significantly, defendant did not exhibit any signs that he suffered from a mental deficit during the plea proceedings. He had already been found competent to stand trial following a CPL 730.30 examination and engaged in coherent communications with the court, indicating that he fully understood the rights that he was forfeiting by pleading guilty. Moreover, defendant's assertions regarding the deficiencies of counsel are conclusory in nature and concern matters outside the record. Therefore, we find that Supreme Court did not abuse its discretion in summarily denying defendant's motion to withdraw his guilty plea (see People v. Bond, 145 A.D.3d 1323, 1324, 42 N.Y.S.3d 872 [2016], lv denied 29 N.Y.3d 1090, 63 N.Y.S.3d 6, 85 N.E.3d 101 [2017] ; People v. Charleston, 142 A.D.3d at 1250, 38 N.Y.S.3d 278). Furthermore, given that defendant's claim of ineffective assistance of counsel is predicated on matters outside the record, it is more appropriately addressed via a CPL article 440 motion (see People v. Smith, 155 A.D.3d 1244, 1246, 65 N.Y.S.3d 580 [2017] ; People v. Bond, 145 A.D.3d at 1324, 42 N.Y.S.3d 872).
ORDERED that the judgment is affirmed.
Garry, P.J., McCarthy, Mulvey and Aarons, JJ., concur.