People v. Khan

• Decision Date: 19 May 2016
• Docket Number: 107234.
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicholas M. KHAN, Also Known as NIDDY, Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1261
31 N.Y.S.3d 671
2016 N.Y. Slip Op. 03918

The PEOPLE of the State of New York, Respondent,
v.
Nicholas M. KHAN, Also Known as NIDDY, Appellant.

107234.

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

May 19, 2016.

31 N.Y.S.3d 672

Brian M. Quinn, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY, ROSE and AARONS, JJ.

McCARTHY, J.

139 A.D.3d 1261

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered October 3, 2014, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

In satisfaction of a consolidated 17–count indictment, defendant pleaded guilty to murder in the second degree (intentional) pursuant to a plea agreement that included a written cooperation agreement and a waiver of appeal. The charges primarily stem from defendant's actions, among others, in repeatedly discharging a gun in the direction of a fleeing vehicle that had been stolen from him in a drug transaction, resulting in the death of one of the vehicle's occupants from a gunshot to the head. The sealed cooperation agreement detailed the terms of

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the plea agreement and provided, among other things, that, if defendant fully cooperated with the outlined obligations, he would receive a

31 N.Y.S.3d 673

prison sentence of 20 years to life; if he violated any of its terms, he would receive a prison sentence of 25 years to life. Defendant subsequently moved to withdraw his guilty plea alleging that his assigned counsel had been ineffective. County Court assigned substitute counsel to represent defendant on the motion and thereafter denied the motion. After the court twice adjourned the proceedings to permit defendant to confer with assigned counsel to decide whether to cooperate, defendant renounced the cooperation agreement and requested that he be sentenced. Pursuant to the plea agreement, County Court imposed a prison sentence of 25 years to life, and defendant now appeals.

We affirm. Initially, a review of the plea colloquy, counseled written waiver signed in court and executed cooperation agreement establishes that defendant knowingly, voluntarily and intelligently waived his right to appeal and to collaterally attack the conviction or sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see also People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2011] ). The written waiver, reviewed with counsel and which defendant indicated he understood, adequately informed him that it was separate from the trial-related rights automatically forfeited upon his guilty plea (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Moreover, the record demonstrates that defendant discussed the appeal waiver with counsel, had no questions about it, was able to explain it to the court and fully understood and unequivocally agreed to it. Therefore, defendant is precluded from challenging the sentence as harsh and excessive (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).¹

Turning to his plea, defendant argues that County Court erred in denying his motion to withdraw his plea without holding a hearing. “Whether to allow withdrawal of a guilty plea is left to the sound discretion of County Court, and will generally not be permitted absent some evidence of innocence, fraud or mistake in its inducement” (People v. Martin, 136 A.D.3d 1110, 1111, 25 N.Y.S.3d 397 [2016] [internal quotation marks and citations omitted] ). A hearing is required only when “the record presents a genuine issue of fact with respect to its voluntariness” (

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People v. Crispell, 136 A.D.3d 1121, 1122, 24 N.Y.S.3d 454 [2016] [internal quotation marks and citations omitted] ). Defendant's motion was premised upon an ineffective assistance of counsel claim, specifically, that assigned counsel had not fully explained to him the prison time required under the plea agreement and that, after speaking with counsel, he “was under the impression that [he] would have to [serve six-sevenths] of 20 years” and would thereafter serve lifetime parole.² However, the record belies any contention that defendant was not fully informed of the potential sentences that he faced, as the cooperation

31 N.Y.S.3d 674

agreement unambiguously outlined all of the plea terms including the sentencing terms. Moreover, during the plea allocution, the court repeatedly explained the plea terms and consequences and the parameters of the sentencing promise, including the minimum and maximum promised sentences that depended on whether he cooperated fully. To that end, the court emphasized that 20 years “is the minimum” sentence that defendant would have to serve if he cooperated, and that it would be up to the Board of Parole thereafter to determine when he would be released to lifetime parole; there was no mention of any possibility that he would be released after serving fewer than 20 years in prison. The court also ascertained that no other promises had been made to him.

Under these circumstances, we find that defendant's guilty plea was knowing, voluntary and intelligent and should be upheld (see People v. Haffiz, 19 N.Y.3d 883, 884, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ; People v. Fiumefreddo, 82 N.Y.2d 536, 546–548, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). In denying defendant's motion to withdraw his plea, County Court was entitled to rely on the record to conclude that defendant had been...