Opinion
2011-10-7
The PEOPLE of the State of New York, Respondent,v.Jennifer R. WOLF, also known as Jennifer R. Wolfe, Defendant-appellant.
Marcel J. Lajoy, Albany, for Defendant–Appellant.Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
Marcel J. Lajoy, Albany, for Defendant–Appellant.Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting her upon her plea of guilty of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25[1] ), defendant contends that her waiver of the right to appeal was invalid. We reject that contention. Despite defendant's contention to the contrary, the record “establish[es] that [she] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. McKeon, 78 A.D.3d 1617, 910 N.Y.S.2d 623, lv. denied 16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155). Defendant further contends that County Court abused its discretion in denying her motion to withdraw the guilty plea on the ground that
the plea was not knowing, voluntary or intelligent. Although defendant's contention survives her valid waiver of the right to appeal ( see People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053), it is without merit. “Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence , fraud, or mistake in inducing the plea” ( People v. Robertson, 255 A.D.2d 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188). Here, defendant failed to submit her own affidavit, let alone any medical evidence, to substantiate her claim in support of her motion that her mental illness precluded her from entering a voluntary plea ( see People v. Ashley, 71 A.D.3d 1286, 1287, 896 N.Y.S.2d 520, affd. 16 N.Y.3d 725, 917 N.Y.S.2d 91, 942 N.E.2d 300; People v. Ramos, 77 A.D.3d 773, 774, 909 N.Y.S.2d 484, lv. denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187). Further, “[d]efendant's contention is belied by the record of the plea proceeding, which establishes that [her] factual allocution was lucid and detailed and that defendant understood both the nature of the proceedings and that [s]he was waiving various rights” ( People v. Hayes, 39 A.D.3d 1173, 1175, 834 N.Y.S.2d 784, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897). Defendant responded to the court's questions in a clear manner, repeatedly confirmed that she understood the proceedings, and declined opportunities to speak with her attorney. Thus, “nothing in the record of the plea proceeding establishes that defendant's alleged mental illness ‘so stripped [defendant] of orientation or cognition that [s]he lacked the capacity to plead guilty’ ” ( People v. Young, 66 A.D.3d 1445, 1446, 885 N.Y.S.2d 860, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915, quoting People v. Alexander, 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802).
Defendant's further contention that her plea was coerced because the People informed defense counsel that they would pursue additional charges against defendant if she rejected the plea offer is “belied by [her] statement during the plea proceeding that [she] was not threatened, coerced or otherwise influenced against [her] will into pleading guilty” ( People v. Irvine, 42 A.D.3d 949, 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 [internal quotation marks omitted] ). In any event, “[t]he fact that the possibility of [additional charges] may have influenced defendant's decision to plead guilty is insufficient to establish that the plea was coerced” ( People v. Hobby, 83 A.D.3d 1536, 1536, 921 N.Y.S.2d 580; see People v. Coppaway, 281 A.D.2d 754, 722 N.Y.S.2d 813). Nor does “the fact that defendant was required to accept or reject the plea offer within a short time period ... amount to coercion” ( People v. Mason, 56 A.D.3d 1201, 1202, 867 N.Y.S.2d 609, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446 [internal quotation marks omitted] ).
Contrary to defendant's further contention, we conclude that the court did not err in failing to conduct an evidentiary hearing on her motion to withdraw her guilty plea. During the lengthy oral arguments on the motion, the court afforded defense counsel the opportunity to set forth each of his arguments in support of withdrawal. Defendant was thus “afforded ... the requisite ‘reasonable opportunity to present h[er] contentions' in support of that motion” ( People v. Strasser, 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544; see Irvine, 42 A.D.3d at 949, 838 N.Y.S.2d 765). Further, although defense counsel asserted the attorney-client privilege in response
to certain questions by the court, the court was not required to appoint new counsel to represent defendant on the motion inasmuch as defense counsel “did not take an adverse position to defendant” or become a witness against her ( People v. Milazo, 33 A.D.3d 1060, 1061, 822 N.Y.S.2d 332, lv. denied 8 N.Y.3d 883, 832 N.Y.S.2d 495, 864 N.E.2d 625; see People v. McKoy, 60 A.D.3d 1374, 1374–1375, 875 N.Y.S.2d 721, lv. denied 12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591; cf. People v. Kirkland, 68 A.D.3d 1794, 1795, 892 N.Y.S.2d 842).
Finally, defendant contends that the drugs in question that were brought into the prison do not constitute “dangerous contraband” pursuant to Penal Law § 205.25(1). To the extent that her contention may be deemed to be a jurisdictional challenge to the indictment that survives her valid waiver of the right to appeal ( see People v. Hernandez, 63 A.D.3d 1615, 879 N.Y.S.2d 870, lv. denied 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017), we reject that contention. The indictment alleges that defendant “committed acts constituting every material element of the crime charged” ( People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656), and the indictment therefore is not jurisdictionally defective ( see id. at 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656; cf. People v. Hines, 84 A.D.3d 1591, 1591–1592, 922 N.Y.S.2d 828; People v. Reeves, 78 A.D.3d 1332, 911 N.Y.S.2d 236, lv. denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187; People v. Hurell–Harring, 66 A.D.3d 1126, 1127–1128, 887 N.Y.S.2d 317).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.