PEOPLE v. TRUITT (2019)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting her, upon her plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [4] ), defendant contends that her waiver of the right to appeal was not knowingly, voluntarily and intelligently entered.  We reject that contention.  Contrary to defendant's assertion, County Court did not conflate defendant's waiver of the right to appeal with the rights automatically forfeited by a plea of guilty, and indeed the court specifically apprised defendant that “[t]he right to appeal is separate and distinct from” those rights that were automatically forfeited upon a plea of guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Joubert, 158 A.D.3d 1314, 1315, 68 N.Y.S.3d 375 [4th Dept. 2018], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018];  People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334 [4th Dept. 2008], lv denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413 [2008] ).  Defendant's valid waiver of the right to appeal encompasses her contention that the sentence is unduly harsh and severe (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).  Similarly, defendant's further contention that the court erred in refusing to suppress her statement to the police does not survive her valid waiver of the right to appeal (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999];  People v. Lynn, 144 A.D.3d 1491, 1492, 40 N.Y.S.3d 685 [4th Dept. 2016], lv denied 28 N.Y.3d 1186, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ).

Defendant also contends that the court erred in denying, without a hearing, her pro se motion to withdraw her plea on the ground that she is not guilty.  Although that contention survives defendant's valid waiver of the right to appeal (see People v. Colon, 122 A.D.3d 1309, 1309–1310, 995 N.Y.S.2d 429 [4th Dept. 2014], lv. denied 25 N.Y.3d 1200, 16 N.Y.S.3d 522, 37 N.E.3d 1165 [2015];  People v. Montgomery, 63 A.D.3d 1635, 1635–1636, 880 N.Y.S.2d 811 [4th Dept. 2009], lv denied 13 N.Y.3d 798, 887 N.Y.S.2d 548, 916 N.E.2d 443 [2009] ), we conclude that it lacks merit.  “Only in the rare instance will a defendant be entitled to an evidentiary hearing [on a motion to withdraw her plea of guilty];  often a limited interrogation by the court will suffice” (People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ).  Here, the court reviewed the plea colloquy and then denied defendant's motion to withdraw the plea, and we conclude that the court correctly determined that “defendant's assertions of innocence ․ were conclusory and belied by defendant's statements during the plea colloquy” (People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794 [4th Dept. 2009], lv denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [2009];  see People v. Roberts, 126 A.D.3d 1481, 1481, 4 N.Y.S.3d 574 [4th Dept. 2015], lv. denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016];  see generally People v. Haffiz, 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ).

To the extent that defendant's contention that she was denied effective assistance of counsel survives her guilty plea and waiver of the right to appeal (see People v. Rausch, 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863 [4th Dept. 2015], lv. denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016];  People v. Strickland, 103 A.D.3d 1178, 1178, 958 N.Y.S.2d 640 [4th Dept. 2013] ), we conclude that it lacks merit inasmuch as the record before us establishes that defendant was afforded meaningful representation (see People v. Blarr, [Appeal No. 1], 149 A.D.3d 1606, 1606, 54 N.Y.S.3d 468 [4th Dept. 2017], lv denied 29 N.Y.3d 1123, 64 N.Y.S.3d 673, 86 N.E.3d 565 [2017];  see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ).