People v. Hall, 264 KA 14-01407.

• Court: New York Supreme Court Appellate Division
• Citation: 2016 N.Y. Slip Op. 03296,138 A.D.3d 1407,30 N.Y.S.3d 422
• Docket Number: 264 KA 14-01407.
• Parties: The PEOPLE of the State of New York, Respondent, v. Derrick L. HALL, Defendant–Appellant.
• Decision Date: 29 April 2016

138 A.D.3d 1407
30 N.Y.S.3d 422
2016 N.Y. Slip Op. 03296

The PEOPLE of the State of New York, Respondent,
v.
Derrick L. HALL, Defendant–Appellant.

264 KA 14-01407.

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

April 29, 2016.

30 N.Y.S.3d 423

David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.

Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, CARNI, DeJOSEPH, and TROUTMAN, JJ.

MEMORANDUM:

138 A.D.3d 1407

Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of assault in the second degree (Penal Law § 120.05[2] ). The plea was in satisfaction of an indictment charging assault in the first degree, assault in the second degree, and criminal possession of a weapon in the third degree. Defendant contends that County Court abused its discretion in denying his motion to withdraw his plea because it was coerced and was not knowingly, intelligently and voluntarily entered owing to the ineffective assistance of counsel. We note at the outset that, even assuming, arguendo, that the waiver of the right to appeal is valid, we nevertheless agree with defendant that his contention survives the plea and the waiver of the right to appeal to the extent that defendant contends that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of [his] attorney['s] allegedly poor performance” (People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [internal quotation marks omitted]; see People v. Davis, 119 A.D.3d 1383, 1383, 989 N.Y.S.2d 224, lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 ; People v. Judd, 111 A.D.3d 1421, 1422–1423, 975 N.Y.S.2d 312,

30 N.Y.S.3d 424

lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 ).

In a letter to the court, defendant alleged that defense counsel forced him to accept the plea offer by informing him, inter alia, that if convicted after trial, the court would sentence him to a term exceeding 20 years. Defense counsel thereafter filed a motion to withdraw the plea,...