Opinion
11-17-2016
The PEOPLE of the State of New York, Respondent, v. Jose H. CADET, Appellant.
G. Scott Walling, Schenectady, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), for respondent.
G. Scott Walling, Schenectady, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), for respondent.
Before: PETERS, P.J., GARRY, DEVINE, CLARK and AARONS, JJ.
CLARK, J.Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered June 5, 2015, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to criminal possession of a controlled substance in the third degree and waived his right to appeal. County Court denied defendant's subsequent motion to withdraw his guilty plea and sentenced him, in accordance with the terms of the plea agreement, to a prison term of two years followed by two years of postrelease supervision. Defendant appeals.
We are unpersuaded by defendant's contention that County Court abused its discretion in summarily denying his motion to withdraw his plea. It is within the trial court's discretion to determine the nature and extent of the fact-finding procedures necessary to decide a motion to withdraw a guilty plea and a limited interrogation by the court will often be sufficient (see People v. Fiumefreddo, 82 N.Y.2d 536, 544, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ; People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ; People v. Riddick, 136 A.D.3d 1124, 1124, 24 N.Y.S.3d 456 [2016], lv. denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ). “An evidentiary hearing will be required only where the record presents a genuine question of fact as to the plea's voluntariness” (People v. Decker, 139 A.D.3d 1113, 1116, 30 N.Y.S.3d 751 [2016] [internal quotation marks and citations omitted], lv. denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; see People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010] ).
Here, defendant moved to withdraw his plea on the basis that he continued to be harassed and threatened by a codefendant, that he was innocent and that his guilty plea would result in his deportation. A review of the plea colloquy reflects that County Court explained, and defendant acknowledged that he understood, the deportation consequences of the guilty plea (see People v. Rebelo, 137 A.D.3d 1315, 1317, 27 N.Y.S.3d 699 [2016], lv. denied 28 N.Y.3d 936, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016] ). Additionally, the continued threats and harassment by a codefendant do not undermine the voluntariness of the plea. Finally, defendant's sworn admissions during the plea allocution contradict his conclusory and unsupported claim of innocence (see 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] ; People v. Barton, 126 A.D.3d 1238, 1239, 3 N.Y.S.3d 653 [2015], lv. denied 26 N.Y.3d 1142, 32 N.Y.S.3d 56, 51 N.E.3d 567 [2016] ).
Next, we agree with defendant that the waiver of the right to appeal is invalid because he was not advised that his right to appeal was separate and distinct from the rights that he automatically forfeited by pleading guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Beverly, 137 A.D.3d 1421, 1422, 27 N.Y.S.3d 724 [2016], lv. denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016] ). As such, his challenge to the sentence as harsh and excessive is not precluded. Nevertheless, we find no basis to disturb the sentence imposed. We note that the agreed-upon sentence was significantly less than the maximum statutorily permitted sentence (see Penal Law § 70.70[2][a][i] ). Furthermore, our review of the record reveals no extraordinary circumstances or abuse of discretion to warrant a reduction of the sentence in the interest of justice (see People v. White, 122 A.D.3d 1005, 1006, 995 N.Y.S.2d 653 [2014] ).ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, DEVINE and AARONS, JJ., concur.