Opinion
09-30-2016
The PEOPLE of the State of New York, Respondent, v. Anson SPATES, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty Of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty Of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, DeJOSEPH, NEMOYER, and CURRAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [4] ). Contrary to defendant's contention, Supreme Court did not abuse its discretion in denying his motion to withdraw the plea (see People v. Watkins, 107 A.D.3d 1416, 1416, 966 N.Y.S.2d 637, lv. denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 ; People v. Wolf, 88 A.D.3d 1266, 1266–1267, 930 N.Y.S.2d 382, lv. denied 18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296 ). Defendant contended in support of his motion that the plea was not knowing, voluntary, and intelligent based upon what defendant believed was an erroneous “threat of 50 years” in prison if he did not plead guilty and his assertion that he did not have enough time to consider the offer. Inasmuch as the court made clear at the time of the plea that the maximum sentence was 25 years and defendant agreed at the time of the plea that he had discussed the matter with his attorney and never indicated that he needed more time, defendant's contention is “belied by the record of the plea proceeding' ..., which establishes that defendant understood the nature of the proceedings” (Watkins, 107 A.D.3d at 1417, 966 N.Y.S.2d 637 ), and is “ refuted by his statements during the plea proceedings' ” (People v. McKinnon, 5 A.D.3d 1076, 1076, 773 N.Y.S.2d 659, lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 ).
Defendant's contention that his guilty plea was not knowing, voluntary, and intelligent because the court failed to elicit an affirmative factual recitation directly from him is a challenge to the factual sufficiency of the plea allocution and thus “is encompassed by [the] valid waiver of the right to appeal” (People v. Kosty, 122 A.D.3d 1408, 1408, 996 N.Y.S.2d 449, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 ; see also People v. Hicks, 128 A.D.3d 1358, 1359, 8 N.Y.S.3d 748, lv. denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 ; People v. Irvine, 42 A.D.3d 949, 950, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 ).
Finally, while we agree that defendant's waiver of his right to appeal does not encompass his challenge to the severity of his sentence inasmuch as “no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal with respect to his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence” (People v. Ayala, 117 A.D.3d 1447, 1448, 984 N.Y.S.2d 764, lv. denied 23 N.Y.3d 1033, 993 N.Y.S.2d 247, 17 N.E.3d 502 [internal quotation marks omitted] ), we nevertheless conclude that defendant's sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.