PEOPLE v. ELLISON (2004)

Application by the appellant for a writ of error coram nobis to vacate a decision and order of this court, dated March 24, 1997 (People v. Ellison, 237 A.D.2d 531, 656 N.Y.S.2d 900), affirming a sentence of the Supreme Court, Kings County, imposed May 24, 1995, on the ground of ineffective assistance of appellate counsel.   By decision and order on motion of this court dated August 4, 2003, the appellant was granted leave to serve and file a brief on the issue of whether the Supreme Court, Kings County, improperly denied his motion to withdraw his plea of guilty, and the coram nobis application was held in abeyance in the interim.   The parties have now filed their respective briefs.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied effective assistance of appellate counsel (see Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987;  People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883).   The appellant contends that former appellate counsel was ineffective for failing to argue that the Supreme Court erred in denying his motion to withdraw his plea of guilty without holding a hearing.   However, the record demonstrated that the defendant knowingly, voluntarily, and intelligently pleaded guilty (see People v. Alexander, 97 N.Y.2d 482, 743 N.Y.S.2d 45, 769 N.E.2d 802;  People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170;  People v. Leggio, 305 A.D.2d 518, 761 N.Y.S.2d 74;  People v. Telfair, 299 A.D.2d 429, 749 N.Y.S.2d 436).   Furthermore, the court conducted an adequate inquiry into the defendant's unsubstantiated assertions of innocence and coercion, which were contradicted by the record and insufficient to warrant vacatur of the plea (see People v. Guerrero, 307 A.D.2d 935, 762 N.Y.S.2d 888;  People v. Solis, 302 A.D.2d 542, 755 N.Y.S.2d 270;  People v. Telfair, supra;  People v. Eschenberg, 275 A.D.2d 719, 713 N.Y.S.2d 292;  People v. Earnshaw, 262 A.D.2d 579, 691 N.Y.S.2d 334).