People v. Wolf

• Decision Date: 07 October 2011
• Citation: 930 N.Y.S.2d 382,2011 N.Y. Slip Op. 07095,88 A.D.3d 1266
• Parties: The PEOPLE of the State of New York, Respondent,v.Jennifer R. WOLF, also known as Jennifer R. Wolfe, Defendant-appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1266
930 N.Y.S.2d 382
2011 N.Y. Slip Op. 07095

The PEOPLE of the State of New York, Respondent,
v.
Jennifer R. WOLF, also known as Jennifer R. Wolfe, Defendant-appellant.

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

Oct. 7, 2011.

[930 N.Y.S.2d 383]

Marcel J. Lajoy, Albany, for Defendant–Appellant.Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

[88 A.D.3d 1266] On appeal from a judgment convicting her upon her plea of guilty of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25[1] ), defendant contends that her waiver of the right to appeal was invalid. We reject that contention. Despite defendant's contention to the contrary, the record “establish[es] that [she] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. McKeon, 78 A.D.3d 1617, 910 N.Y.S.2d 623, lv. denied 16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155). Defendant further contends that County Court abused its discretion in denying her motion to withdraw the guilty plea on the ground that

[930 N.Y.S.2d 384]

the plea was not knowing, voluntary or intelligent. Although defendant's contention survives her valid waiver of the right to appeal ( see People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053), it is without merit. “Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence[88 A.D.3d 1267] , fraud, or mistake in inducing the plea” ( People v. Robertson, 255 A.D.2d 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188). Here, defendant failed to submit her own affidavit, let alone any medical evidence, to substantiate her claim in support of her motion that her mental illness precluded her from entering a voluntary plea ( see People v. Ashley, 71 A.D.3d 1286, 1287, 896 N.Y.S.2d 520, affd. 16 N.Y.3d 725, 917 N.Y.S.2d 91, 942 N.E.2d 300; People v. Ramos, 77 A.D.3d 773, 774, 909 N.Y.S.2d 484, lv. denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187). Further, “[d]efendant's contention is belied by the record of the plea proceeding, which establishes that [her] factual allocution was lucid and detailed and that defendant understood both the nature of the proceedings and that [s]he was waiving various rights” ( People v. Hayes, 39 A.D.3d 1173, 1175, 834 N.Y.S.2d 784, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897). Defendant responded to the court's questions in a clear manner, repeatedly confirmed that she understood the proceedings, and declined opportunities to speak with her attorney. Thus, “nothing in the record of the plea proceeding establishes that defendant's alleged mental illness ‘so stripped [defendant] of orientation or cognition that [s]he lacked the capacity to plead...