PEOPLE v. BEARDSLEY (2019)

MEMORANDUM AND ORDER

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

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).  In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of unlawful manufacture of methamphetamine in the third degree (§ 220.73[2] ) and, in appeal No. 3, he appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the third degree (§§ 110.00, 220.16[1] ).  As part of his plea agreement in appeal No. 1, defendant agreed to waive his right to appeal, including his right to appeal the denial of his motion to withdraw his pleas in appeal Nos. 2 and 3. We reject defendant's contention in appeal No. 1 that his waiver of the right to appeal is invalid.  The record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal and that he understood that the right to appeal was separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016];  People v. Moore, 158 A.D.3d 1312, 1312, 68 N.Y.S.3d 361 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ).  The valid waiver of the right to appeal encompasses defendant's challenge to Supreme Court's suppression ruling (see Moore, 158 A.D.3d at 1312, 68 N.Y.S.3d 361).

Defendant's contention that the court erred in summarily denying his motion to withdraw his pleas in appeal Nos. 2 and 3 survives his valid waiver of the right to appeal only to the extent that it concerns the voluntariness of the pleas (see People v. Green, 122 A.D.3d 1342, 1343, 995 N.Y.S.2d 897 [4th Dept. 2014];  see also People v. Mobayed, 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ).  Nevertheless, we reject that contention.  Defendant's claim that the pleas were involuntary due to his innocence was not supported by a sworn affidavit (see People v. Rosekrans, 149 A.D.3d 1563, 1564, 52 N.Y.S.3d 793 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ) and was instead based on conclusory and unsubstantiated statements (see People v. Matthews, 24 A.D.3d 1306, 1306, 805 N.Y.S.2d 907 [4th Dept. 2005], lv denied 6 N.Y.3d 850, 816 N.Y.S.2d 756, 849 N.E.2d 979 [2006] ).  Thus, we conclude that, “given the nature of the materials submitted in support of the motion, the court did not abuse its discretion in denying the motion without conducting a fact-finding hearing” (Rosekrans, 149 A.D.3d at 1564–1565, 52 N.Y.S.3d 793).  To the extent that defendant contends that defense counsel coerced him into pleading guilty, we note that his contention involves matters outside the record on appeal and must be raised via a motion pursuant to CPL 440.10 (see People v. Hodge, 226 A.D.2d 1124, 1124, 642 N.Y.S.2d 832 [4th Dept. 1996], lv. denied 88 N.Y.2d 986, 649 N.Y.S.2d 393, 672 N.E.2d 619 [1996]; see also People v. McFarley, 144 A.D.3d 1521, 1522, 40 N.Y.S.3d 853 [4th Dept. 2016] ).  To the extent that the record permits review, we further conclude that the court properly denied the motion without a hearing because defendant's contention was based on conclusory assertions of coercion (see Matthews, 24 A.D.3d at 1306, 805 N.Y.S.2d 907;  see generally People v. Camacho, 4 A.D.3d 862, 862, 771 N.Y.S.2d 481 [4th Dept. 2004], lv denied 2 N.Y.3d 761, 778 N.Y.S.2d 779, 811 N.E.2d 41 [2004] ).

We have considered defendant's remaining contentions raised in these appeals and conclude that none warrants reversal or modification of the judgments.