People v. Jackson

• Decision Date: 30 December 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Loretta JACKSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09747
90 A.D.3d 1692
936 N.Y.S.2d 462

The PEOPLE of the State of New York, Respondent,
v.
Loretta JACKSON, Defendant–Appellant.

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

Dec. 30, 2011.

[936 N.Y.S.2d 462]

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.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

[90 A.D.3d 1693] 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 A.D.3d 1334, 885 N.Y.S.2d 794, lv. denied

[936 N.Y.S.2d 463]

13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [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 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587, lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449). 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 A.D.3d 1442, 1443, 897 N.Y.S.2d 570, lv. denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219). 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 A.D.2d 875, 648 N.Y.S.2d 62, lv. denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508; see Boyde, 71 A.D.3d at 1443, 897 N.Y.S.2d 570).

Defendant's contention that her plea was not knowing, intelligent and voluntary because she did not recite the underlying facts of the crime “is...