PEOPLE v. ELLIOTT (2009)

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered August 21, 2008, convicting defendant upon her plea of guilty of the crime of falsely reporting an incident in the third degree.

In full satisfaction of an eight-count indictment, defendant entered an Alford plea of guilty to falsely reporting an incident in the third degree in exchange for a sentence of three years of probation and waived her right to appeal.   On the day before sentencing was scheduled, defendant moved for an adjournment to allow her an opportunity to confer with new counsel, claiming in an unsworn affidavit that her current counsel had misled her regarding the terms of her plea and that she had been indirectly threatened into pleading guilty by County Court.   At sentencing, defendant again moved for an adjournment and also moved to withdraw her plea on the same grounds.   County Court denied both motions and sentenced defendant in accordance with the plea agreement.   Defendant now appeals.

 We affirm.   Initially, we note that the basis of defendant's request for an adjournment and motion to withdraw her plea relate to the voluntariness of the plea and, therefore, survive her waiver of the right to appeal (see People v. Harrison, 52 A.D.3d 969, 970, 859 N.Y.S.2d 511 [2008], lv. denied 11 N.Y.3d 737, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008];  People v. Wyant, 47 A.D.3d 1068, 1069, 849 N.Y.S.2d 357 [2008], lv. denied 10 N.Y.3d 873, 860 N.Y.S.2d 499, 890 N.E.2d 262 [2008] ).   Turning to the merits, the “granting of an adjournment for any purpose is a matter of discretion for the trial court” (People v. Singleton, 41 N.Y.2d 402, 405, 393 N.Y.S.2d 353, 361 N.E.2d 1003 [1977];  see People v. Schnackenberg, 269 A.D.2d 618, 619, 704 N.Y.S.2d 161 [2000], lv. denied 94 N.Y.2d 925, 708 N.Y.S.2d 365, 729 N.E.2d 1164 [2000] ).   There is no proof in the record, other than her own unsworn affidavit, supporting defendant's claims of coercion.   Notably, defendant did not raise this issue during the plea colloquy and indicated that she was pleading guilty voluntarily.   Accordingly, we find no abuse of discretion in County Court's denial of defendant's request for an adjournment (see People v. Grimes, 53 A.D.3d 1055, 1056, 860 N.Y.S.2d 723 [2008], lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ).

 Regarding defendant's oral motion to withdraw her plea, we note that the only issues preserved for our review are those raised as the basis for her motion-the allegations of being misled by counsel and indirectly threatened by County Court into pleading guilty (see People v. Rogers, 15 A.D.3d 682, 682, 788 N.Y.S.2d 716 [2005];  People v. Spulka, 285 A.D.2d 840, 840, 727 N.Y.S.2d 789 [2001], lv. denied 97 N.Y.2d 643, 735 N.Y.S.2d 500, 761 N.E.2d 5 [2001] ).   As there is nothing in the record to support her contentions and our review of the plea colloquy reveals that defendant acknowledged the rights she was relinquishing by her plea, that she understood the terms of the plea agreement and that she was entering an Alford plea to avoid facing a prison term, defendant has not established that her plea was induced by coercion.   Moreover, her allegations concern matters outside the record and are more properly the subject of a CPL article 440 motion (see People v. Stevenson, 58 A.D.3d 948, 949, 870 N.Y.S.2d 637 [2009];  People v. Mosher, 45 A.D.3d 970, 971, 845 N.Y.S.2d 174 [2007], lv. denied 10 N.Y.3d 814, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] ).

ORDERED that the judgment is affirmed.

LAHTINEN, J.

CARDONA, P.J., PETERS, KANE and GARRY, JJ., concur.