People v. Shurock

• Decision Date: 28 April 2011
• Citation: 83 A.D.3d 1342,2011 N.Y. Slip Op. 03311,920 N.Y.S.2d 862
• Parties: The PEOPLE of the State of New York, Respondent,v.Joshua A. SHUROCK, Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1342
920 N.Y.S.2d 862
2011 N.Y. Slip Op. 03311

The PEOPLE of the State of New York, Respondent,
v.
Joshua A. SHUROCK, Appellant.

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

April 28, 2011.

[920 N.Y.S.2d 863]

Theresa M. Suozzi, Saratoga Springs, for appellant.Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ.GARRY, J.

[83 A.D.3d 1342] Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered May 24, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to burglary in the second degree, waived his right to appeal and was furloughed pending sentencing. After violating the terms of his conditional release, defendant was returned to County Court on a bench warrant, at which time he expressed his desire to withdraw his plea—a request he renewed at sentencing. County Court denied defendant's motion and sentenced him as a second felony offender

[920 N.Y.S.2d 864]

to the agreed-upon prison term of five years followed by five years of postrelease supervision. Defendant now appeals.

We affirm. Preliminarily, we find that defendant validly waived his right to appeal. County Court explained the appeal rights being waived, and defendant indicated that he both understood the rights being forfeited and had been given sufficient time to confer with counsel. Under these circumstances, defendant's refusal to sign the written waiver of appeal presented to him at sentencing did not render his prior oral waiver [83 A.D.3d 1343] ineffective ( see People v. Mattison, 74 A.D.3d 1495, 1495–1496, 902 N.Y.S.2d 228 [2010], lv. denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] ).¹

Turning to the merits, although defendant's challenge to the voluntariness of his plea survives his valid appeal waiver and, further, has been preserved for our review by his motion to withdraw his plea ( see People v. Ortiz, 69 A.D.3d 966, 967, 892 N.Y.S.2d 622 [2010]; People v. Wyant, 47 A.D.3d 1068, 1069, 849 N.Y.S.2d 357 [2008], lv. denied 10 N.Y.3d 873, 860 N.Y.S.2d 499, 890 N.E.2d 262 [2008] ), we find it to be lacking in merit. The plea allocution reveals that defendant was advised of and understood the charges against him, denied being under the influence of any illegal or controlled substances, expressed his satisfaction with counsel's services and indicated that he was entering into the plea of his own free will. Contrary to defendant's assertion, he “was not required to recite the elements of the crime or engage in a factual exposition” ( People v. Williams, 35 A.D.3d 971, 972, 825 N.Y.S.2d 322 [2006], lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007] ), as his affirmative responses to County Court's inquiries, coupled with his own statement, were sufficient to establish his guilt ( see People v. Singletary, 51 A.D.3d 1334, 1335, 858 N.Y.S.2d 483 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008]; see generally People v. Board, 75 A.D.3d 833, 834, 906 N.Y.S.2d 155 [2010] ). Accordingly, we find defendant's plea to be knowing, intelligent and voluntary.

Although the challenge to the summary denial of his motion to withdraw the plea...