PEOPLE v. NICHOLS

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jamar S. NICHOLS, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, HURLBUTT, KEHOE, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (Mary P. Davison of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him upon his plea of guilty of two counts of robbery in the second degree (Penal Law § 160.10[1], [2][b] ) and one count of grand larceny in the fourth degree (§ 155.30[5] ), defendant contends that his waiver of the right to appeal is invalid because he was denied effective assistance of counsel and the plea was not knowingly, voluntarily or intelligently entered.   We reject defendant's contentions.   The contention of defendant that he received ineffective assistance of counsel is properly before us inasmuch as the alleged ineffectiveness infected the plea, including the waiver of the right to appeal (see People v. Jennings, 8 A.D.3d 1067, 1068, 778 N.Y.S.2d 399, lv. denied 3 N.Y.3d 676, 784 N.Y.S.2d 14, 817 N.E.2d 832;  People v. French, 292 A.D.2d 813, 738 N.Y.S.2d 925, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229), but that contention “involves matters dehors the record, which are not reviewable on this direct appeal” (People v. Williams, 15 A.D.3d 863, 864, 789 N.Y.S.2d 591;  see People v. Michalski, 15 A.D.3d 918, 919, 788 N.Y.S.2d 776).   The contention of defendant that the plea was coerced and thus was not knowingly, voluntarily or intelligently entered “is belied by h [is] statement during the plea proceeding that [ ]he was not threatened, coerced or otherwise influenced against h[is] will into pleading guilty” (People v. Beaty, 303 A.D.2d 965, 965, 755 N.Y.S.2d 911, lv. denied 100 N.Y.2d 559, 763 N.Y.S.2d 816, 795 N.E.2d 42;  see People v. Reynolds, 295 A.D.2d 986, 743 N.Y.S.2d 766, lv. denied 98 N.Y.2d 713, 749 N.Y.S.2d 10, 778 N.E.2d 561).   Moreover, the fact that an attorney advises a defendant against going to trial does not constitute coercion where, as here, the record establishes that defendant was fully advised of the ramifications of his plea, that he understood those ramifications and that no other promises had been made to induce the plea (see People v. McDonnell, 302 A.D.2d 619, 754 N.Y.S.2d 466, lv. denied 100 N.Y.2d 540, 763 N.Y.S.2d 6, 793 N.E.2d 420;  People v. Dashnaw, 260 A.D.2d 658, 659, 688 N.Y.S.2d 268, lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099).

 Defendant's valid waiver of the right to appeal “encompasses the contention of defendant that Supreme Court abused its discretion in denying his request for youthful offender status” (People v. Andrews, 285 A.D.2d 984, 984, 727 N.Y.S.2d 686, lv. denied 96 N.Y.2d 938, 733 N.Y.S.2d 378, 759 N.E.2d 377;  see Williams, 15 A.D.3d at 864, 789 N.Y.S.2d 591;  People v. Sweeney, 4 A.D.3d 769, 770, 771 N.Y.S.2d 760, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 307, 814 N.E.2d 479) as well as “his contention [ ] that the sentence is unduly harsh or severe” (People v. Duzant, 15 A.D.3d 860, 861, 789 N.Y.S.2d 594;  see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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

MEMORANDUM: