JENKINS, EDWARD M., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
288
KA 12-00567
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
EDWARD M. JENKINS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
EDWARD M. JENKINS, DEFENDANT-APPELLANT PRO SE.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered February 21, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree and
robbery in the third degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a
plea of guilty of one count of robbery in the first degree (Penal Law
§ 160.15 [4]) and two counts of robbery in the third degree (§
160.05), defendant contends that County Court erred in denying his
motion to withdraw his guilty plea. Defendant’s contention “that his
plea was involuntary because he was coerced by defense counsel is
belied by [defendant’s] responses to the court’s questions during the
plea colloquy, indicating that he was pleading guilty voluntarily and
that no threats or promises had induced the plea” (People v Toliver,
82 AD3d 1581, 1582, lv denied 17 NY3d 802, reconsideration denied 17
NY3d 862; see People v Ivey, 98 AD3d 1230, 1231, lv denied 20 NY3d
1012; People v Irvine, 42 AD3d 949, 949, lv denied 9 NY3d 962).
“Furthermore, the fact that defendant was required ‘to accept or
reject the plea offer within a short time period does not amount to
coercion’ ” (Irvine, 42 AD3d at 949; see People v Mason, 56 AD3d 1201,
1202, lv denied 11 NY3d 927; People v Thomas, 39 AD3d 1197, 1198-1199,
lv denied 9 NY3d 869). Although defendant also contended in support
of his motion that he was innocent of the crimes, he “failed to submit
any new evidence to substantiate his conclusory assertions of
innocence” (People v Morris, 78 AD3d 1613, 1614, lv denied 17 NY3d
798; see People v Diaz, 286 AD2d 980, 980, lv denied 97 NY2d 681), and
he admitted all of the essential elements of the crimes during the
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KA 12-00567
plea allocution (see People v Hobby, 83 AD3d 1536, 1536, lv denied 17
NY3d 859; People v Sparcino, 78 AD3d 1508, 1509, lv denied 16 NY3d
746). Therefore, based on the record before us, we see no reason to
disturb the court’s denial of defendant’s motion (see People v
Stephens, 6 AD3d 1123, 1124-1125, lv denied 3 NY3d 663,
reconsideration denied 3 NY3d 682).
Contrary to defendant’s contention, the record establishes that
he knowingly, voluntarily and intelligently waived his right to appeal
(see People v Bradshaw, 18 NY3d 257, 264-265; People v Lopez, 6 NY3d
248, 256), and that valid waiver encompasses his contentions, raised
in his main and pro se supplemental briefs, that the court erred in
refusing to suppress identification testimony and in refusing to hold
a Wade hearing on the superseded indictment (see People v Kemp, 94
NY2d 831, 833; People v Caraballo, 59 AD3d 971, 971, lv denied 12 NY3d
852; People v McMillon, 31 AD3d 1197, 1197), as well as the final
contention in his pro se supplemental brief that he was denied his
statutory right to a speedy trial (see People v Badding, 107 AD3d
1453, 1454; People v Paduano, 84 AD3d 1730, 1730; People v Barnes, 41
AD3d 1309, 1309-1310, lv denied 9 NY3d 920).
Entered: May 9, 2014 Frances E. Cafarell
Clerk of the Court