THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MIKEL ODLE DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of, inter alia, murder in the second degree (Penal Law § 125.25[1] ), defendant contends that he did not knowingly, voluntarily and intelligently waive his right to appeal.   We reject that contention.   Defendant waived his right to appeal both orally and in writing, and we conclude that defendant's “responses during the plea colloquy and his execution of a written waiver of the right to appeal establish that he intelligently, knowingly, and voluntarily waived his right to appeal” (People v. Rumsey, 105 AD3d 1448, 1449, lv denied 21 NY3d 1019).

Defendant further contends that his plea was not knowingly, voluntarily, and intelligently entered and thus that County Court erred in denying his motion to withdraw his plea.   We reject that contention.  “Permission to withdraw a guilty plea rests solely within the court's discretion ․, and refusal to permit withdrawal does not constitute an abuse of discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea” (People v. Robertson, 255 A.D.2d 968, 968, lv denied 92 N.Y.2d 1053;  see People v. Garner, 86 AD3d 955, 955).   We perceive no abuse of discretion here.   Defendant's assertions that he was “threatened” and “coerced” into accepting the plea are belied by his statements during the plea proceeding (see People v. McNew, 117 AD3d 1491, 1492;  People v. Witkop, 114 AD3d 1242, 1243, lv denied 23 NY3d 1069).   Moreover, “[t]he fact that defendant may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced” (People v. Villone, 302 A.D.2d 866, 866, lv denied 4 NY3d 768;  see People v. Zimmerman, 100 AD3d 1360, 1362, lv denied 20 NY3d 1015).   Defendant's challenge to the sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal (see People v. Rosado, 70 AD3d 1315, 1316, lv denied 14 NY3d 892).   In any event, defendant also failed to preserve that challenge for our review by moving to withdraw his plea on that ground, and the narrow exception to the preservation doctrine does not apply here (see People v. Smith, 43 AD3d 474, 475, lv denied 9 NY3d 1009;  People v. Anaya, 8 AD3d 33, 33, lv denied 3 NY3d 670).

Finally, defendant contends that he was denied effective assistance of counsel.   To the extent that defendant's contention survives his guilty plea and valid waiver of the right to appeal (see People v. Strickland, 103 AD3d 1178, 1178), we conclude that it lacks merit.   The record establishes that defendant “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404).

Frances E. Cafarell

Clerk of the Court