People v. Griffin

Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived his right to appeal ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). “ ‘Although County Court's colloquy was brief, defendant signed a detailed written waiver of the right to appeal ..., and he acknowledged to the court that he understood that he was foregoing the right to appeal’ ” ( People v. Bridenbaker, 112 A.D.3d 1379, 1380, 976 N.Y.S.2d 921). Defendant's valid waiver of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution ( see People v. Gardner, 101 A.D.3d 1634, 1634, 956 N.Y.S.2d 367). In any event, defendant failed to preserve that challenge for our review, and this case does not fall within the narrow exception to the preservation requirement ( see People v. Thomas, 72 A.D.3d 1483, 1483, 899 N.Y.S.2d 761).

Defendant's further contention that the court abused its discretion in denying his motion to withdraw his plea on the ground that it was coerced survives his valid waiver of the right to appeal ( see People v. Jackson, 85 A.D.3d 1697, 1698, 925 N.Y.S.2d 746, lv. denied 17 N.Y.3d 817, 929 N.Y.S.2d 806, 954 N.E.2d 97; 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). We nevertheless reject that contention. “ ‘The unsupported allegations of defendant that [defense counsel] pressured him into accepting the plea bargain [did] not warrant vacatur of his plea’ ” ( People v. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391). Defendant asserted that he accepted the plea offer based on defense counsel's advice that he was unlikely to prevail at trial and that he would likely receive a harsher sentence if convicted after trial. That advice does not constitute coercion ( see People v. Elting, 18 A.D.3d 770, 771, 795 N.Y.S.2d 699, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669). Furthermore, defendant admitted at sentencing that he pleaded guilty based on his fear that he would not succeed at trial and would receive a harsher sentence, and it is well settled that “ ‘defendant's fear that a harsher sentence would be imposed if defendant were convicted after trial does not constitute coercion’ ” ( People v. Zimmerman, 100 A.D.3d 1360, 1362, 953 N.Y.S.2d 427, lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334; see People v. Jackson, 90 A.D.3d 1692, 1693, 936 N.Y.S.2d 462, lv. denied 18 N.Y.3d 958, 944 N.Y.S.2d 487, 967 N.E.2d 712).

Finally, although defendant's contention that defense counsel was ineffective for coercing him into accepting the plea agreement also survives his valid waiver of the right to appeal ( see People v. Neil, 112 A.D.3d 1335, 1336, 977 N.Y.S.2d 519), that contention is without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.