PEOPLE v. CAPOCCETTA (2009)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ).   County Court properly denied defendant's motion to withdraw the plea.   The record of the plea proceeding establishes that the plea was knowingly, voluntarily and intelligently entered and, contrary to defendant's contention, “a plea agreement is not inherently coercive or invalid simply because it affords a benefit to a loved one, as long as the plea itself is knowingly, voluntarily and intelligently made” (People v. Etkin, 284 A.D.2d 579, 580, 728 N.Y.S.2d 205, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119).   We reject the further contention of defendant that he is entitled to withdraw his plea based upon his unilateral mistake with respect to the sentence that his brother, a codefendant, would receive.  “A defendant will not be heard to challenge his guilty plea when the minutes of the plea [proceeding] are unequivocal and refute any contention of an off-the-record promise” (People v. Frederick, 45 N.Y.2d 520, 526, 410 N.Y.S.2d 555, 382 N.E.2d 1332).   The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: