People v. Cole

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: EGAN JR.
• Citation: People v. Cole, 2014 NY Slip Op 4258, 118 A.D.3d 1098, 987 N.Y.S.2d 247 (N.Y. App. Div. 2014)
• Decision Date: 12 June 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Raymond COLE Jr., Also Known as Junior, Appellant.

118 A.D.3d 1098

987 N.Y.S.2d 247

2014 N.Y. Slip Op. 04258

The PEOPLE of the State of New York, Respondent,

v.Raymond COLE Jr., Also Known as Junior, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 12, 2014.

Teresa C. Mulliken, Harpersfield, for appellant.

Mark D. Suben, District Attorney, Cortland (Kenneth H. Tyler Jr. of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered March 18, 2008, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree. Following the denial of his motion to dismiss the indictment, defendant pleaded guilty to one count of attempted criminal sale of a controlled substance in the third degree in full satisfaction of both the underlying indictment and other pending charges. County Court denied defendant's subsequent motion to withdraw his plea without a hearing and thereafter sentenced defendant to time served and five years of probation. This appeal by defendant ensued.

We affirm. “A guilty plea generally represents a compromise or bargain struck after negotiation between defendant and the People. As such, it marks the end of a criminal case, not a gateway to further litigation” ( People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985];see People v. Mercer, 81 A.D.3d 1159, 1160, 917 N.Y.S.2d 397 [2011],lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ). For that reason, “[a] guilty plea not only constitutes an actual waiver of certain rights associated with a trial, but also effects a forfeiture of the right to renew many arguments made before the plea” ( People v. Taylor, 65 N.Y.2d at 5, 489 N.Y.S.2d 152, 478 N.E.2d 755), including claims founded upon nonjurisdictional defects in the grand jury proceeding ( see People v. Gerber, 182 A.D.2d 252, 260–261, 589 N.Y.S.2d 171 [1992],lv. denied80 N.Y.2d 1026, 592 N.Y.S.2d 676, 607 N.E.2d 823 [1992] ), the legal sufficiency of the evidence underlying the indictment ( see People v. Caban, 89 A.D.3d 1321, 1322, 932 N.Y.S.2d 923 [2011];People v. Heller, 67 A.D.3d 1253, 1254, 889 N.Y.S.2d 297 [2009];People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009],lv. denied13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009];People v. Melendez, 48 A.D.3d 960, 960, 852 N.Y.S.2d 440[2008],lv. denied10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008] ) and the form and factual specificity thereof ( see People v. Taylor, 65 N.Y.2d at 5, 489 N.Y.S.2d 152, 478 N.E.2d 755;People v. Slingerland, 101 A.D.3d 1265, 1265–1266, 955 N.Y.S.2d 690 [2012],lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ), as well as any claim that the counts contained therein are multiplicitous ¹ ( see People v. Oakley, 112 A.D.3d 1064, 1064, 976 N.Y.S.2d 619 [2013],lv. denied22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618 [2014];People v. Chase, 101 A.D.3d 1141, 1141, 955 N.Y.S.2d 891 [2012],lv. denied20 N.Y.3d 1097, 965 N.Y.S.2d 793, 988 N.E.2d 531 [2013];People v. Slingerland, 101 A.D.3d at 1265–1266, 955 N.Y.S.2d 690). Accordingly, defendant's present claims—that the evidence before the grand jury consisted solely of incompetent hearsay evidence and, therefore, was legally insufficient to support the indictment, that the indictment was facially defective in that it failed to give notice of the specific time and date of the alleged sales and that counts one and two of the indictment were multiplicitous because the same offense was charged in both counts—were forfeited by his subsequent plea of guilty ( see People v. Chase, 101 A.D.3d at 1141, 955 N.Y.S.2d 891;People v. Slingerland, 101 A.D.3d at 1265–1266, 955 N.Y.S.2d 690;People v. Heller, 67 A.D.3d at 1254, 889 N.Y.S.2d 297).

Turning to defendant's motion to withdraw his plea, to the extent that defendant's motion is based upon his assertion that counsel provided him with erroneous legal advice or withheld certain documents from him, this claim implicates matters outside of the record and, as such, is more properly the subject of a CPL article 440 motion ( see People v. English, 100 A.D.3d 1147, 1148, 953 N.Y.S.2d 722 [2012];People v. Underdue, 89 A.D.3d 1132, 1134, 931 N.Y.S.2d 784 [2011],lv. denied19 N.Y.3d 969, 950 N.Y.S.2d 121, 973 N.E.2d 219 [2012] ). As to the balance of defendant's motion, “[t]he decision to permit withdrawal of a guilty plea is a matter within the trial court's sound discretion, and a hearing is required only where the record presents a genuine question of fact as to its voluntariness” ( People v. Carbone, 101 A.D.3d 1232, 1234, 956 N.Y.S.2d 221 [2012] [internal quotation marks and citations omitted]; see People v. Smith, 89 A.D.3d 1328, 1328, 932 N.Y.S.2d 913 [2011] ). Here, County Court conducted a thorough and detailed plea colloquy, during the course of which defendant readily admitted to conduct constituting the relevant crime, stated that he was satisfied with counsel's services, acknowledged that he was forfeiting the right to raise any available defenses, denied being threatened or coerced in any fashion and indicated that he was pleading guilty freely and voluntarily. Under these circumstances, defendant's unsubstantiated assertions of innocence were...