Opinion
2015–2725 W CR
12-28-2017
The PEOPLE of the State of New York, Respondent, v. James FINNERTY, Appellant.
Appellate Term Docket No. 2015–2776 W CR Lower Court # 14–5702 Scott M. Bishop, Esq., for appellant. Westchester County District Attorney (Laurie Sapakoff, Esq.), for respondent.
Appellate Term Docket No. 2015–2776 W CR Lower Court # 14–5702 Scott M. Bishop, Esq., for appellant.
Westchester County District Attorney (Laurie Sapakoff, Esq.), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that, on the court's own motion, the appeals are consolidated for the purposes of disposition; and it is further,
ORDERED that the judgments of conviction are affirmed.
According to a misdemeanor information and supporting deposition, on November 21, 2014, defendant, James Finnerty, and his girlfriend, were sitting in a pickup truck in Yonkers, when defendant grabbed her neck and applied pressure, causing the girlfriend to sustain substantial pain, swelling and redness. Defendant also allegedly pulled her hair and grabbed her head and the back of her neck. Defendant was charged in a misdemeanor information with criminal obstruction of breathing or blood circulation ( Penal Law § 121.11 [a] ), assault in the third degree ( Penal Law § 120.00 [1 ] ), and harassment in the second degree ( Penal Law § 240.26 [1 ] ). He was arrested on a warrant, by which it was disclosed that defendant would also be charged with a violation of probation on a 2011 case. P. Christopher Cotronei, Esq., was assigned to represent defendant on the November 21st charge and on the violation of probation. The court issued a temporary order of protection, dated November 25, 2014, against defendant and in favor of his girlfriend, and defendant was released on his own recognizance.
On December 2, 2014, defendant went to the home of his girlfriend, in violation of the temporary order of protection. Defendant was arrested and charged in a misdemeanor information with criminal contempt in the second degree ( Penal Law § 215.50 [3 ] ). Susan M. D'Ambrosio, Esq., was assigned to represent defendant on the criminal contempt charge, and the court released defendant on his own recognizance.
On December 16, 2014, defendant appeared in the City Court of Yonkers, represented by his two attorneys, before Judge Arthur J. Doran, III. Defendant agreed to plead guilty to assault in the third degree with respect to the November 2014 charge, and criminal contempt in the second degree with respect to the December 2014 charge, with the understanding that he would be sentenced to two years of probation on each charge, the terms to run concurrently. He would also admit to the violation of probation and would be restored to probation with respect thereto. During an allocution, defendant agreed that he had had sufficient time to discuss all matters related to his pleas and admissions with his attorneys, and that he was satisfied with their representation. When asked by the court whether he was waiving his right to appeal, defendant replied "yes." Defendant stated that he had gone over the misdemeanor conviction waiver of rights forms with his attorneys and had understood everything that was in each of those forms, including all of the rights he was waiving by entering the pleas of guilty. Defendant then pleaded guilty to the two charges and admitted to the violation of probation. Defendant acknowledged that, on November 21, 2014, he had committed the crime of assault in the third degree against his girlfriend by applying pressure to her neck and causing substantial pain, and that, on December 2, 2014, he had committed the crime of criminal contempt in the second degree by intentionally violating an order of protection issued by the City Court of Yonkers by going to the home of his girlfriend. He further admitted that he had committed those 2014 offenses after having been previously placed on probation, and that those two offenses violated the terms and conditions of that probationary sentence. He agreed that he was entering all of the pleas and admissions freely and voluntarily, and that everything he said in court was true.
By notice of motion dated April 7, 2015, defendant, by his counsel, P. Christopher Cotronei, moved pursuant to CPL 220.60 to vacate his plea of guilty to assault in the third degree. In an affidavit in support of the motion, defendant alleged that, during the court proceeding of December 16, 2014, "there was little opportunity to voice my concerns" based on what he was "hearing in the distance, during bench conferences and discussions between my attorney and the assistant District Attorney, and comments made to my attorney by the probation officer as well as the Judge in the Part." Defendant was convinced that had he not accepted the offer, "the new charges were going to be adjourned for a Jury Trial" and he would be in jail on the violation of probation while awaiting the jury trial. He had no idea that he could have defended himself on the new charges while remaining out of jail. He did not want to be incarcerated during the Christmas holidays and believed that he would have been taken into custody if he had not accepted the plea bargain. He also denied that he had choked or assaulted his girlfriend.
By notice of motion dated June 4, 2015, defendant, by his counsel, Susan M. D'Ambrosio, moved pursuant to CPL 220.60 to vacate his plea of guilty to criminal contempt in the second degree based on nearly identical grounds as his motion to vacate his plea to assault in the third degree.
In a memorandum of law in opposition to both motions, the People argued that defendant's claims were insufficient to warrant the withdrawal of his guilty pleas, as they were unsupported by any independent source other than his own self-serving, conclusory affidavit, that was belied by his allocution. The People contended that defendant had failed to establish that he had been under duress when he had entered his guilty pleas. The People further argued that defendant's contention was baffling as he had previously been arraigned on every docket pending before the court, and had been released on his own recognizance on each docket. His protestations of innocence were devoid of any factual account of either incident. At the plea allocution, defendant had expressly acknowledged that he was satisfied with the representation of his attorneys, who had negotiated highly advantageous plea agreements on his behalf.
In an order dated July 23, 2015, the City Court (Arthur J. Doran, III, J.) denied the motions. The court noted that the record established that defendant had knowingly, voluntarily, and intelligently entered his pleas of guilty, and that defendant's conclusory claims of innocence and duress were belied by his statements under oath at the plea proceeding. On November 17, 2015, the City Court (Robert C. Cerrato, J.) sentenced defendant to concurrent terms of two years' probation.
On appeal, defendant claims that he did not receive the effective assistance of counsel because both attorneys failed "to meaningfully, clearly and fully explain the import and consequences of entering a plea." Defendant otherwise repeats the same contentions that he raised in the City Court.
At the outset, we note that defendant's waiver of his right to appeal is invalid, as it is not evident on the face of the record that he understood the waiver, and the court never informed him that it was separate and distinct from the waiver of his trial rights (see People v. Lopez , 6 NY3d 248, 256 [2006] ; People v. Caine , 149 AD3d 769 [2017] ).
"A motion to withdraw a plea of guilty is addressed to the sound discretion of the court, and its determination generally will not be disturbed absent an improvident exercise of discretion" ( People v. Marryshow , 135 AD3d 964, 964 [2016] ; see People v. Seeber , 4 NY3d 780 [2005] ). Here, defendant, at the allocution, agreed that he had had sufficient time to discuss all matters related to the pleas with his attorneys and that he was entering the pleas freely and voluntarily. Defendant's "unequivocal acknowledgment under oath during the plea proceeding that no one had threatened, coerced, or influenced him against his will into pleading guilty and that he was satisfied with the services provided by his attorneys belied his ... claims" that he did not understand the terms and conditions of the pleas ( People v. Marryshow , 135 AD3d at 965 ; see People v. Wilkov , 77 AD3d 512 [2010] ). Defendant's claims were based on his self-serving and conclusory allegations of confusion, innocence and ineffective assistance of counsel, and are without merit (see People v. Jerome , 98 AD3d 1188, 1188 [2012] ; People v. De Gaspard , 170 AD2d 835, 837 [1991] ; People v. Brown , 168 AD2d 702 [1990] ; People v. Bell , 141 AD2d 749, 750 [1988] ). The record demonstrates that defendant pleaded guilty voluntarily, knowingly and intelligently (see People v. Fiumefreddo , 82 NY2d 536, 543 [1993] ). Consequently, the City Court did not improvidently exercise its discretion in denying the motions to vacate the pleas.
Accordingly, the judgments of conviction are affirmed.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.