PEOPLE v. COSTON (2022)

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 forged instrument in the second degree (Penal Law § 170.25) and petit larceny (§ 155.25). In appeal No. 2, he appeals from a judgment revoking the sentence of probation previously imposed upon that conviction and imposing an indeterminate term of incarceration.

With respect to appeal No. 1, defendant contends that he was deprived of effective assistance of counsel because his attorney took a position adverse to him with respect to his pro se motion to withdraw his plea of guilty. We reject that contention. The record establishes that, although County Court denied the motion, the court made its determination before defense counsel made the comments that were adverse to defendant's position on the motion (cf. People v. Mitchell, 21 N.Y.3d 964, 966-967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013]). Therefore, we conclude that the court's denial of the motion was not influenced by defense counsel's statements (see People v. Martinez, 166 A.D.3d 1558, 1559-1560, 88 N.Y.S.3d 732 [4th Dept. 2018]; People v. Carter-Doucette, 124 A.D.3d 1323, 1324, 998 N.Y.S.2d 269 [4th Dept. 2015], lv denied 25 N.Y.3d 988, 10 N.Y.S.3d 531, 32 N.E.3d 968 [2015]; People v. Wester, 82 A.D.3d 1677, 1678, 919 N.Y.S.2d 417 [4th Dept. 2011], lv denied 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 [2011]).

Contrary to defendant's further contention in appeal No. 1, the court did not abuse its discretion in denying the motion. It is well settled that “there is no requirement that a defendant personally recite the facts underlying his or her crime[s] during the plea colloquy” (People v. Bullock, 78 A.D.3d 1697, 1698, 910 N.Y.S.2d 750 [4th Dept. 2010], lv denied 16 N.Y.3d 742, 917 N.Y.S.2d 624, 942 N.E.2d 1049 [2011] [internal quotation marks omitted]; see People v. Brinson, 192 A.D.3d 1559, 1560, 143 N.Y.S.3d 489 [4th Dept. 2021]), and the record here “establishes that defendant confirmed the accuracy of [the court's] recitation of the facts underlying the crime[s]” (People v. Gordon, 98 A.D.3d 1230, 1230, 951 N.Y.S.2d 278 [4th Dept. 2012], lv denied 20 N.Y.3d 932, 957 N.Y.S.2d 692, 981 N.E.2d 289 [2012] [internal quotation marks omitted]; see People v. Pryce, 148 A.D.3d 1625, 1626, 51 N.Y.S.3d 737 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017]). We have considered defendant's remaining contentions concerning appeal No. 1 and conclude that they lack merit.

Finally, with respect to appeal No. 2, defendant's sole contention is that his sentence is unduly harsh and severe. Defendant has completed serving his sentence and, therefore, his challenge to the severity of the sentence is moot (see People v. Kelley, 186 A.D.3d 1103, 1103, 127 N.Y.S.3d 364 [4th Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 533, 158 N.E.3d 550 [2020]). We thus dismiss that appeal (see People v. Pompeo, 151 A.D.3d 1949, 1950, 54 N.Y.S.3d 902 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017]; People v. Laney, 117 A.D.3d 1481, 1482, 984 N.Y.S.2d 727 [4th Dept. 2014]).