JACKSON, LORETTA, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1442
KA 08-02188
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LORETTA JACKSON, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered May 7, 2008. The judgment convicted defendant,
upon her plea of guilty, of robbery in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of robbery in the second degree (Penal Law §
160.10 [1]). We conclude that there is no merit to defendant’s
contention that her waiver of the right to appeal was invalid. “[T]he
record establishes that County Court engage[d] the defendant in an
adequate colloquy to ensure that the waiver of the right to appeal was
a knowing and voluntary choice” (People v Wright, 66 AD3d 1334, lv
denied 13 NY3d 912 [internal quotation marks omitted]). “Although the
[further] contention of defendant that [she] was coerced into pleading
guilty and thus that the plea was not voluntarily entered survives the
waiver of the right to appeal, defendant did not move to withdraw the
plea or to vacate the judgment of conviction and thus failed to
preserve that contention for our review” (People v Russell, 55 AD3d
1314, 1314-1315, lv denied 11 NY3d 930). In any event, that
contention lacks merit. “[I]t is well settled that ‘[a] defendant may
not be induced to plead guilty by the threat of a heavier sentence if
he [or she] decides to proceed to trial’ ” but, here, the statements
and actions of the court during the pre-plea proceeding did not amount
to impermissible coercion (People v Boyde, 71 AD3d 1442, 1443, lv
denied 15 NY3d 747). Moreover, “defendant’s fear that a harsher
sentence would be imposed if defendant were convicted after trial does
not constitute coercion” (People v Newman [appeal No. 1], 231 AD2d
875, lv denied 89 NY2d 944; see Boyde, 71 AD3d at 1443).
Defendant’s contention that her plea was not knowing, intelligent
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KA 08-02188
and voluntary because she did not recite the underlying facts of the
crime “is actually a challenge to the factual sufficiency of the plea
allocution, which is encompassed by the valid waiver of the right to
appeal” (People v McCarthy, 83 AD3d 1533, 1534, lv denied 17 NY3d 819
[internal quotation marks omitted]). Further, that challenge “is
unpreserved for our review inasmuch as [she] did not move to withdraw
the plea or to set aside the judgment of conviction on that ground”
(id.; see People v Lopez, 71 NY2d 662, 665-666). “In any event, there
is no merit to defendant’s challenge because ‘there is no requirement
that defendant recite the underlying facts of the crime to which [she]
is pleading guilty’ ” (McCarthy, 83 AD3d at 1534). “ ‘The record
establishes that defendant admitted the essential elements of the . .
. [crime,] and thus [her] factual allocution is legally sufficient’ ”
(People v Dorrah, 50 AD3d 1619, lv denied 11 NY3d 736). We also
conclude that there is no merit to the contention of defendant that
the court’s temporary misidentification of her accomplice amounted to
an error that rendered the plea allocution meaningless, inasmuch as
defendant confirmed the actual identity of her accomplice at the
court’s prompting.
Finally, “[t]he contention of defendant that [she] was denied
effective assistance of counsel survives the plea and waiver of the
right to appeal only to the extent that ‘[she] contends that [her]
plea was infected by the allegedly ineffective assistance and that
[she] entered the plea because of [defense counsel’s] allegedly poor
performance’ . . . We conclude, however, that defendant’s contention
lacks merit to that extent” (People v Jacques, 79 AD3d 1812, 1812-
1813, lv denied 16 NY3d 896). “ ‘In the context of a guilty plea, a
defendant has been afforded meaningful representation when he or she
receives an advantageous plea and nothing in the record casts doubt on
the apparent effectiveness of [defense] counsel’ . . ., and that is
the case here” (People v Garner, 86 AD3d 955, 956, quoting People v
Ford, 86 NY2d 397, 404).
Entered: December 30, 2011 Frances E. Cafarell
Clerk of the Court