PEOPLE v. SPIKES

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Howard SPIKES, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  SCUDDER, J.P., KEHOE, MARTOCHE, GREEN, AND HAYES, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Shirley K. Duffy of Counsel), for Defendant-Appellant. Howard Spikes, Defendant-Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15[3] ).   The record establishes that defendant validly waived his right to appeal at the time of the plea (see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Ali, 24 A.D.3d 1299, 805 N.Y.S.2d 884;  People v. Lynch, 4 A.D.3d 809, 771 N.Y.S.2d 435, lv. denied 2 N.Y.3d 742, 778 N.Y.S.2d 468, 810 N.E.2d 921), and that waiver was not rendered invalid by defendant's refusal to sign the written waiver of the right to appeal at the time of sentencing (see People v. Marrero, 242 A.D.2d 800, 661 N.Y.S.2d 1015).   The waiver encompasses defendant's challenge to the factual sufficiency of the plea allocution (see People v. Hughes [Appeal No. 1], 21 A.D.3d 1394, 801 N.Y.S.2d 209, lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 585, 842 N.E.2d 483;  People v. King, 20 A.D.3d 907, 798 N.Y.S.2d 638, lv. denied 5 N.Y.3d 829, 804 N.Y.S.2d 44, 837 N.E.2d 743;  People v. Ball, 20 A.D.3d 925, 797 N.Y.S.2d 331, lv. denied 5 N.Y.3d 850, 806 N.Y.S.2d 170, 840 N.E.2d 139), as well as defendant's challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

 Contrary to defendant's further contentions, the plea was voluntary, knowing, and intelligent (see People v. Kemp, 270 A.D.2d 927, 706 N.Y.S.2d 654, lv. denied 95 N.Y.2d 836, 713 N.Y.S.2d 143, 735 N.E.2d 423;  People v. Dillard, 262 A.D.2d 1044, 693 N.Y.S.2d 360, lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937), and County Court did not abuse its discretion in denying defendant's pro se motion to withdraw the plea (see People v. Price, 309 A.D.2d 1259, 765 N.Y.S.2d 563, lv. denied 1 N.Y.3d 578, 775 N.Y.S.2d 794, 807 N.E.2d 907;  People v. Rivers, 296 A.D.2d 861, 862, 744 N.Y.S.2d 918, lv. denied 99 N.Y.2d 539, 752 N.Y.S.2d 600, 782 N.E.2d 578).   There is no requirement that defendant personally recite the facts underlying the crime, and his responses to the questions of the court during the plea colloquy did not negate any element of the offense or otherwise cast any doubt on defendant's guilt (see People v. Seeber, 4 N.Y.3d 780, 780-782, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Brown, 305 A.D.2d 1068, 1069, 759 N.Y.S.2d 830, lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481).   Although defendant asserted at sentencing that he was under the influence of drugs at the time of his plea and was coerced into entering the plea, those assertions are belied by his statements made under oath during the plea colloquy (see People v. Forshey, 298 A.D.2d 962, 963, 748 N.Y.S.2d 295, lv. denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83, 100 N.Y.2d 561, 763 N.Y.S.2d 818, 795 N.E.2d 44;  People v. Forshey, 294 A.D.2d 868, 741 N.Y.S.2d 486, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229).   To the extent that the further contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097), we conclude that his contention lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;  Brown, 305 A.D.2d at 1069, 759 N.Y.S.2d 830).   We have considered the contention of defendant raised in his pro se supplemental brief and conclude that it is without merit.

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

MEMORANDUM: