Opinion
1288 KA 17–00062
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Timothy L. WILLIAMS, Defendant–Appellant.
WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF COUNSEL), FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF COUNSEL), FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt 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 criminal possession of marihuana in the second degree ( Penal Law § 221.25 ). Initially, we note that it is unnecessary to review defendant's challenge to his waiver of the right to appeal because, as the People correctly concede, "none of the issues he raises would be foreclosed from review by a valid waiver of the right to appeal" ( People v. Irby , 158 A.D.3d 1050, 1051, 70 N.Y.S.3d 687 [4th Dept. 2018], lv. denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ; see People v. Lefler , 159 A.D.3d 1427, 1427, 70 N.Y.S.3d 739 [4th Dept. 2018], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018] ; People v. Dale , 142 A.D.3d 1287, 1288, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ). Defendant contends that his guilty plea was not knowingly, intelligently, and voluntarily entered and that County Court abused its discretion in denying his motion to withdraw his plea on that ground without first conducting a hearing. We reject defendant's contention that the court erred in failing to conduct an evidentiary hearing before denying his motion (see generally People v. Manor , 27 N.Y.3d 1012, 1013–1014, 35 N.Y.S.3d 272, 54 N.E.3d 1143 [2016] ; People v. Stutzman , 158 A.D.3d 1294, 1295, 71 N.Y.S.3d 784 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ). Contrary to defendant's further contention, the court properly denied his motion. "[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. Schultz , 158 A.D.3d 1058, 1058, 70 N.Y.S.3d 318 [4th Dept. 2018], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] [internal quotation marks omitted] ). Here, there is no support in the record for defendant's contention that the People committed a Brady violation that induced him to plead guilty (see generally Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ). Similarly, defendant's "conclusory and unsubstantiated assertion that his plea was coerced" by threats of additional prosecution was "refuted by his statements during the plea proceedings" ( People v. McKinnon , 5 A.D.3d 1076, 1076–1077, 773 N.Y.S.2d 659 [4th Dept. 2004], lv denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004] [internal quotation marks omitted]; see People v. Spates , 142 A.D.3d 1389, 1389, 38 N.Y.S.3d 362 [4th Dept. 2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ). Notably, defendant's own submissions on his motion establish that he was aware for over six months before pleading guilty that the People were not pursuing additional charges against him. In any event, "[t]he fact that the possibility of [additional charges] may have influenced defendant's decision to plead guilty is insufficient to establish that the plea was coerced" ( People v. Wolf , 88 A.D.3d 1266, 1267, 930 N.Y.S.2d 382 [4th Dept. 2011], lv denied 18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296 [2011] [internal quotation marks omitted] ). Although we agree with defendant that the prosecutor incorrectly stated that defendant could be sentenced as a persistent felony offender (see People v. Boykins , 161 A.D.3d 183, 187, 75 N.Y.S.3d 386 [4th Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ), that fact " ‘is not, in and of itself, 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], quoting People v. Garcia , 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311 [1998] ). Rather, in evaluating that issue, "various factors must be considered, ‘including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused’ " ( id. at 1259, 808 N.Y.S.2d 515, quoting People v. Hidalgo , 91 N.Y.2d 733, 736, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ). Here, defendant was 42 years old at the time he pleaded guilty and had a number of previous experiences with the criminal justice system. Defendant also received a sentencing commitment from the court of no more than shock probation. Based on the record before us, including defendant's statements during the plea colloquy that he was not threatened or forced to plead guilty, we conclude that the court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea.