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People v. Plass

Supreme Court of New York, Third Department

May 25, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
WILLIAM PLASS, Appellant.

          Calendar Date: April 26, 2017

          G. Scott Walling, Schenectady, for appellant.

          P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

          Before: McCarthy, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

          MEMORANDUM AND ORDER

          Mulvey, J.

         Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered June 25, 2015, convicting defendant upon his plea of guilty of the crime of attempted robbery in the third degree.

         Defendant waived his right to a grand jury indictment and pleaded guilty to attempted robbery in the third degree as charged in the resulting superior court information and waived his right to appeal. Prior to sentencing, defendant made an oral motion to withdraw his plea, alleging that the plea was not entered knowingly, voluntarily and intelligently. County Court denied the motion and, in accordance with the plea agreement, sentenced defendant, as a second felony offender, to a prison term of 2 to 4 years. Defendant now appeals.

         We affirm. Contrary to defendant's contention, his waiver of the right to appeal was valid. County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and defendant communicated his understanding thereof. Additionally, defendant executed a written waiver in open court, which he and his counsel signed, that included defendant's acknowledgment that he was waiving the right to appeal after discussing the waiver with counsel (see People v Samuel, 143 A.D.3d 1012, 1012 [2016]; People v Ravenell, 114 A.D.3d 997, 998 [2014], lv denied 23 N.Y.3d 1041');">23 N.Y.3d 1041 [2014]; People v Hoyt, 106 A.D.3d 1340, 1340 [2013]). We reject defendant's contention that he agreed to plead guilty with no consideration given in exchange for the plea, as the record reflects that defendant agreed to plead guilty to a reduced charge (see People v Sawyer, 135 A.D.3d 1164, 1165 [2016], lv denied 27 N.Y.3d 1006');">27 N.Y.3d 1006 [2016]; compare People v Crump, 107 A.D.3d 1046, 1047 [2013], lv denied 21 N.Y.3d 1014');">21 N.Y.3d 1014 [2013]). Defendant's knowing, intelligent and voluntary appeal waiver precludes his challenge to the severity of his sentence (see People v Miller, 137 A.D.3d 1485, 1485 [2016]; People v Butler, 134 A.D.3d 1349, 1350 [2015], lvs denied 27 N.Y.3d 962, 963 [2016]).

         Finally, we reject defendant's contention that he should have been allowed to withdraw his plea. "Generally, a plea may not be withdrawn unless there is some evidence of innocence, fraud or mistake in its inducement" (People v Carmona, 66 A.D.3d 1240, 1241 [2009] [citations omitted], lv denied 14 N.Y.3d 799');">14 N.Y.3d 799 [2010]; see People v Martin, 136 A.D.3d 1110, 1111 [2016]). In support of his motion, defendant contended that his plea was not knowing and voluntary in that he did not have enough time to discuss the plea with counsel and that he has reading difficulties, mental health issues and substance abuse issues. A review of the plea colloquy reflects, however, that defendant affirmed that he had a full opportunity to meet with counsel prior to entering his plea and that he was satisfied with counsel's representation, that he was thinking clearly and understood the terms of the plea and that he had no problem understanding or reading the English language (see People v Ravenell, 114 A.D.3d at 998; People v Hoyt, 106 A.D.3d at 1340). Defendant's further claim supporting his withdrawal motion, that his plea was not knowing and voluntary because he had not reviewed certain unidentified discovery material prior to pleading guilty, was unsubstantiated and insufficient to warrant withdrawal of his plea (see People v Belile, 137 A.D.3d 1427, 1428 [2016], lv denied 27 N.Y.3d 1128');">27 N.Y.3d 1128 [2016]).

          McCarthy, J.P., Egan Jr., Rose and ...


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