Opinion
306 KA 20-01352
04-29-2022
The PEOPLE of the State of New York, Respondent, v. Brandon J. CONGDON, Defendant-Appellant.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted strangulation in the second degree ( Penal Law §§ 110.00, 121.12 ). We affirm.
Initially, defendant's contention that County Court abused its discretion in denying his motion to withdraw the plea survives his purported waiver of the right to appeal (see People v. Stafford , 195 A.D.3d 1466, 1467, 145 N.Y.S.3d 506 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 409, 175 N.E.3d 434 [2021] ; People v. Sparcino , 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ). Nevertheless, we reject that contention. "The decision to permit a defendant to withdraw a guilty plea rests in the sound discretion of the court" ( People v. Smith , 122 A.D.3d 1300, 1301-1302, 995 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015] [internal quotation marks omitted]). Defendant contends that he was coerced into pleading guilty based on, inter alia, the unfulfilled "promise" of the court that he would be admitted into a shock incarceration program. Contrary to defendant's contention, however, the plea colloquy transcript establishes that "neither [his] eligibility for the shock incarceration program ..., nor his ultimate admission to that program was a condition of the plea" ( People v. Demick , 138 A.D.3d 1486, 1486, 29 N.Y.S.3d 215 [4th Dept. 2016], lv denied 27 N.Y.3d 1150, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] [internal quotation marks omitted]). Indeed, the court specifically advised defendant that it could only recommend that he be enrolled in a shock incarceration program, that the ultimate decision of his enrollment belonged to the New York State Department of Corrections and Community Supervision (DOCCS), and that if DOCCS did not "choose" to enroll defendant in a shock incarceration program, the prison sentence would stand (cf. People v. Regan , 199 A.D.3d 1067, 1068-1069, 156 N.Y.S.3d 543 [3d Dept. 2021] ; People v. Smith , 160 A.D.3d 1475, 1475-1476, 72 N.Y.S.3d 910 [4th Dept. 2018] ). To the extent defendant contends that he was promised enrollment in a shock incarceration program based on off-the-record statements, we note that his contention involves matters outside the record on appeal and must be raised via a motion pursuant to CPL 440.10 (see People v. Beardsley , 173 A.D.3d 1722, 1724, 102 N.Y.S.3d 844 [4th Dept. 2019], lv denied 34 N.Y.3d 928, 109 N.Y.S.3d 739, 133 N.E.3d 444 [2019] ; People v. Hodge , 226 A.D.2d 1124, 1124, 642 N.Y.S.2d 832 [4th Dept. 1996], lv denied 88 N.Y.2d 986, 649 N.Y.S.2d 393, 672 N.E.2d 619 [1996] ).
Defendant also contends that the court erred in denying his motion to withdraw his plea because the People violated his right to testify before the grand jury (see generally CPL 190.50 [5] ). We conclude, however, that defendant waived that particular contention inasmuch as it is undisputed that he did not move to dismiss the indictment "on that ground within five days after he was arraigned" ( People v. Linder , 170 A.D.3d 1555, 1557, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019] [internal quotation marks omitted]; see CPL 190.50 [5] [c] ; People v. McCoy , 174 A.D.3d 1379, 1380, 106 N.Y.S.3d 447 [4th Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 653, 137 N.E.3d 23 [2019], reconsideration denied 35 N.Y.3d 994, 125 N.Y.S.3d 634, 149 N.E.3d 395 [2020] ).
Finally, even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of his sentence (see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.