Opinion
2014-01-16
The PEOPLE of the State of New York, Respondent, v. Joseph BARTON, Appellant.
Louis N. Altman, Hurley, for appellant, and appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Louis N. Altman, Hurley, for appellant, and appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: PETERS, P.J., ROSE, McCARTHY and GARRY, JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 13, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of marihuana in the first degree.
Defendant and his son, codefendant Jay Debberman, were charged in an indictmentwith criminal possession of marihuana in the first degree and criminal possession of a controlled substance in the fourth degree. Defendant elected to represent himself and moved to suppress the marihuana that had been seized from their residence. Pursuant to a plea agreement reached in the midst of the suppression hearing, he and Debberman withdrew their pending suppression motion, and defendant pleaded guilty to criminal possession of marihuana in the first degree and waived his right to appeal. County Court later denied the joint applications of defendant and Debberman to withdraw their guilty pleas and sentenced defendant, consistent with the plea agreement, to a conditional discharge. Defendant appeals.
We affirm. While defendant asserted a variety of arguments in his motion to withdraw the guilty plea, he appears to solely contend here that he received the ineffective assistance of counsel during the plea proceedings. “Whether a defendant should be permitted to withdraw his or her plea rests within the sound discretion of the trial court and, generally, such a motion should not be granted absent a showing of innocence, fraud or mistake in the inducement” (People v. Galvan, 107 A.D.3d 1058, 1058, 966 N.Y.S.2d 286 [2013] [citation omitted], lv. denied21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013]; see People v. Arnold, 102 A.D.3d 1061, 1062, 958 N.Y.S.2d 540 [2013] ). Defendant chose to represent himself after being fully informed by the court that he would not be permitted hybrid representation, i.e., to proceed pro se and also have standby counsel at the table to advise him ( see People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000]; People v. Mirenda, 57 N.Y.2d 261, 265, 455 N.Y.S.2d 752, 442 N.E.2d 49 [1982] ). In any event, defendant acknowledged that he had discussed the plea offer with standby counsel to his satisfaction. The record reveals that defendant entered a knowing, intelligent and voluntary guilty plea and, thus, his application to withdraw his plea was properly denied.
Defendant's contentions regarding his suppression motion, which he withdrew before a decision could be rendered upon it, are precluded by his valid guilty plea and appeal waiver ( see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986]; People v. Morrison, 106 A.D.3d 1201, 1202, 964 N.Y.S.2d 761 [2013] ). His arguments regarding the ineffective assistance of counsel outside of the plea context are similarly barred by his appeal waiver ( see People v. Trombley, 91 A.D.3d 1197, 1201, 937 N.Y.S.2d 665 [2012], lv. denied21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013]; People v. Santos–Rivera, 86 A.D.3d 790, 791, 927 N.Y.S.2d 236 [2011], lv. denied17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ). Defendant's remaining assertion that County Court lacked jurisdiction over this proceeding, while properly before us, has been examined and found to lack merit.
ORDERED that the judgment is affirmed. PETERS, P.J., ROSE and GARRY, JJ., concur.