PEOPLE v. CAMPBELL (2009)

 Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of murder in the second degree (Penal Law § 125.25[1], [3] ).   We agree with defendant that his waiver of the right to appeal is invalid because neither the written plea agreement nor the plea colloquy established that defendant understood the distinction between the right to appeal and the trial rights he forfeited by pleading guilty (see People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59;  People v. Williams, 59 A.D.3d 339, 341, 874 N.Y.S.2d 63;  People v. Elcine, 43 A.D.3d 1176, 1177, 843 N.Y.S.2d 343).   The further contention of defendant that he was denied effective assistance of counsel therefore survives the invalid waiver of the right to appeal (see People v. D'Agostino, 55 A.D.3d 353, 865 N.Y.S.2d 75, lv. denied 11 N.Y.3d 924, 874 N.Y.S.2d 9, 902 N.E.2d 443;  People v. Stokely, 49 A.D.3d 966, 968, 853 N.Y.S.2d 221), and it survives the plea to the extent that defendant contends that the plea was infected by the alleged ineffective assistance of counsel (see People v. Gimenez, 59 A.D.3d 1088, 872 N.Y.S.2d 625).   We nevertheless conclude that defendant's contention lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   To the extent that defendant contends that defense counsel was ineffective because he coerced defendant into pleading guilty, that contention is belied by defendant's statement during the plea colloquy that the plea was not the result of any threats, pressure or coercion (see People v. McKoy, 60 A.D.3d 1374, 875 N.Y.S.2d 721;  People v. Singletary, 51 A.D.3d 1334, 858 N.Y.S.2d 483, lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664;  People v. Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231, lv. denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86).   Further, defendant failed to “ ‘demonstrate the absence of strategic or other legitimate explanations' ” for defense counsel's failure to pursue an extreme emotional disturbance defense and to request a mental competency examination (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).   In any event, the record does not support an extreme emotional disturbance defense, nor does it support the need for a mental competency examination.

 We further conclude that County Court did not abuse its discretion in denying defendant's motion to withdraw the plea on the ground of coercion without conducting a hearing inasmuch as the record is devoid of “a genuine question of fact as to the plea's voluntariness” (Singletary, 51 A.D.3d at 1334, 858 N.Y.S.2d 483;  see Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231).

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

MEMORANDUM: