PEOPLE v. NEALON (2018)

MEMORANDUM AND ORDER

In full satisfaction of a four-count indictment, defendant agreed to plead guilty to one count of strangulation in the second degree and one count of criminal contempt in the first degree in exchange for prison terms of 31/212 years for the strangulation conviction and 1 to 3 years for the contempt conviction – said sentences to be served concurrently – and a period of postrelease supervision.  The plea agreement also included a waiver of the right to appeal.  Prior to sentencing, defendant moved to withdraw his plea, contending, among other things, that he “felt pressured into taking a guilty plea [that he] did not want to take.”  The People opposed defendant's request, and County Court denied the motion without a hearing.  Defendant thereafter was sentenced to the agreed-upon terms of imprisonment.  This appeal ensued.

Initially, we agree with defendant that his waiver of the right to appeal was invalid, as County Court “did not advise defendant of the separate and distinct nature of the waiver” (People v. Jaggarnine, 163 A.D.3d 1352, 1353, 77 N.Y.S.3d 909 [2018];  see People v. Morrow, 163 A.D.3d 1265, 1265, 80 N.Y.S.3d 559 [2018] ), and the court's brief exchange with defendant “fell short of ensuring that defendant appreciated the right that he was relinquishing and understood the consequences thereof” (People v. Mallard, 163 A.D.3d 1350, 1351, 82 N.Y.S.3d 653 [2018];  see People v. Baker, 157 A.D.3d 1164, 1165, 69 N.Y.S.3d 764 [2018] ).  Similarly, although defendant executed a written waiver of the right to appeal, County Court did not ask whether defendant had read the written waiver (see People v. Thompson, 157 A.D.3d 1141, 1141, 69 N.Y.S.3d 744 [2018] ) and otherwise “made no attempt to ensure that defendant understood the contents or ramifications thereof” (People v. McClain, 161 A.D.3d 1457, 1458, 77 N.Y.S.3d 752 [2018] [internal quotation marks, brackets and citations omitted];  see People v. Ortiz, 153 A.D.3d 1049, 1049, 61 N.Y.S.3d 178 [2017] ).  As such, defendant is not precluded from challenging the severity of his sentence (see People v. Gonzalez, 162 A.D.3d 1403, 1404, 75 N.Y.S.3d 924 [2018] ).  Upon reviewing the record and considering the nature of the underlying crimes, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see generally People v. Morrow, 163 A.D.3d at 1266, 80 N.Y.S.3d 559).

Defendant's remaining claim – that his motion to withdraw his plea was improperly denied – is equally unpersuasive.  “The decision whether to grant a motion to withdraw a guilty plea rests within the sound discretion of the trial court and, generally, such relief will be permitted only where there is evidence of innocence, fraud or mistake in the inducement” (People v. Little, 92 A.D.3d 1036, 1036, 937 N.Y.S.2d 482 [2012] [citations omitted];  see People v. Conklin, 160 A.D.3d 1114, 1114–1115, 75 N.Y.S.3d 318 [2018] ).  Notably, “[a] hearing is required only when ‘the record presents a genuine issue of fact with respect to [the plea's] voluntariness’ ” (People v. Khan, 139 A.D.3d 1261, 1262, 31 N.Y.S.3d 671 [2016], lvs denied 28 N.Y.3d 932, 934, 40 N.Y.S.3d 360, 362, 63 N.E.3d 80, 82[2016], quoting People v. Crispell, 136 A.D.3d 1121, 1122, 24 N.Y.S.3d 454 [2016], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] ).  Defendant's conclusory assertion that he felt compelled to accept the guilty plea and his unsubstantiated claims of innocence are belied by the transcript of his plea colloquy, wherein he denied that he had been “pressured ․ in any way” to accept a guilty plea and assured County Court that he understood the nature of the proceedings, had been afforded sufficient time to confer with counsel, was satisfied with counsel's services and was pleading guilty of his “own free will.”  Under these circumstances, County Court did not abuse its discretion in denying defendant's motion to withdraw his plea without a hearing (see People v. Crispell, 136 A.D.3d at 1122, 24 N.Y.S.3d 454;  People v. Trimm, 129 A.D.3d 1215, 1215–1216, 10 N.Y.S.3d 738 [2015];  People v. Wren, 119 A.D.3d 1291, 1292, 990 N.Y.S.2d 731 [2014], lv denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Rumsey, J.

Garry, P.J., McCarthy, Lynch and Aarons, JJ., concur.