                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      107234
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
NICHOLAS M. KHAN, Also Known
   as NIDDY,
                    Appellant.
________________________________


Calendar Date:   April 18, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

                             __________


     Brian M. Quinn, Albany, for appellant.

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

                             __________


McCarthy, J.

      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
                              -2-                107234

gunshot to the head. The sealed cooperation agreement detailed
the terms of the plea agreement and provided, among other things,
that, if defendant fully cooperated with the outlined
obligations, he would receive a 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 NY3d
248, 256 [2006]; see also People v Sanders, 25 NY3d 337, 339-341
[2015]; People v Ramos, 7 NY3d 737, 738 [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 NY3d at 256). 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 NY3d at 255-256).1



    1
        Given that defendant was advised of the exact sentence he
would receive if he did not cooperate, even if the sentence
imposed were viewed as an enhanced sentence, his challenge to the
severity of the sentence is precluded by his valid appeal waiver
(see People v Smith, 123 AD3d 1375, 1376 [2014], lv denied 26
NY3d 935 [2015]).
                               -3-                107234

      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 AD3d 1110, 1111 [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" (People v Crispell, 136 AD3d
1121, 1122 [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 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 NY3d 883, 884 [2012]; People v
Fiumefreddo, 82 NY2d 536, 546-548 [1993]). In denying


     2
        Notably, in his motion to withdraw his plea, defendant
did not allege that counsel misinformed him or that he was
innocent.
                              -4-                107234

defendant's motion to withdraw his plea, County Court was
entitled to rely on the record to conclude that defendant had
been consistently and accurately advised of the sentencing
conditions and that no other promises or representations had been
made regarding sentencing (see People v Ramos, 63 NY2d 640, 642
[1984]; compare People v Fitzgerald, 56 AD3d 811, 813-814
[2008]). Defendant's claim that he had been pressured by counsel
to enter a guilty plea is also contradicted by his contrary
assurances to the court during the plea allocution. In any
event, the specific pressure that defendant described, that of
potentially facing life in prison if he did not accept the plea
agreement, is not pressure attributable to counsel and does not
undermine the voluntariness of his plea (see People v Seaberg, 74
NY2d 1, 8 [1989]; People v Taylor, 135 AD3d 1237, 1237 [2016]).
Consequently, the court did not abuse its discretion in denying
defendant's motion without a hearing (see People v Ridick, 136
AD3d 1124, 1124 [2016]).

      Next, defendant's claim that he was deprived of the
effective assistance of counsel, which was preserved by his
motion to withdraw his plea, survives his appeal waiver to the
extent that it impacts upon the voluntariness of his plea, but is
without merit (see People v Howard, 119 AD3d 1090, 1091 [2014],
lv denied 24 NY3d 961 [2014]). Notably, "in the context of a
guilty plea, a defendant has been afforded meaningful
representation when he or she receives an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness
of counsel" (People v Soprano, 135 AD3d 1243, 1243 [2016]
[internal quotation marks and citation omitted]). Here, faced
with strong evidence of defendant's guilt, assigned counsel
negotiated a favorable plea deal that resolved all charges in the
consolidated indictment and other drug-related charges; the
agreement also avoided potential consecutive sentencing for
defendant's distinct crimes (see Penal Law § 70.25 [2]; People v
Harris, 21 NY3d 739, 744-745, 750 [2013]). It bears emphasis
that it was defendant's own choice not to cooperate that resulted
in the higher agreed-to sentence, and counsel nonetheless
advocated for a lower sentence notwithstanding defendant's
noncooperation, which had been against counsel's advice. Thus,
we find that defendant received meaningful representation (see
                                -5-                107234

People v Benevento, 91 NY2d 708, 712-716 [1998]).3 Moreover,
defendant failed to articulate good cause to replace assigned
counsel, such as irreconcilable differences or a conflict of
interest. We discern no abuse of discretion in County Court's
decision, after ample inquiry, not to appoint substitute counsel
following the denial of defendant's motion to withdraw his guilty
plea (see People v Smith, 18 NY3d 588, 592-593 [2012]; People v
Stevenson, 112 AD3d 989, 990-991 [2013], lv denied 22 NY3d 1159
[2014]).

      Finally, contrary to defendant's claim, he was repeatedly
advised – during the plea allocution, by the express terms of the
cooperation agreement and at length prior to sentencing – of the
consequences of violating the cooperation agreement, which
provided that sentence would not be imposed until after his
cooperation was complete. After conferring with counsel,
defendant opted to proceed with sentencing, even after the People
indicated that the terms of the cooperation agreement remained
available despite defendant's actions that violated that
agreement. By electing to be promptly sentenced rather than
cooperate, defendant knowingly waived the 20-year to life
sentence. Thus, we find that he was not deprived of the benefit
of the bargain, and his remaining claims similarly lack merit.

        Lahtinen, J.P., Garry, Rose and Aarons, JJ., concur.




    3
        Defendant's claim that counsel failed to develop or
discuss possible defenses with him is outside the record on
appeal and is more appropriately raised in a motion pursuant to
CPL article 440 (see People v Blair, 136 AD3d 1105, 1106 [2016]).
It is noted that during the plea allocution, County Court advised
defendant that, by pleading guilty, he was waiving any potential
defenses, which defendant indicated he understood (see People v
Brown, 115 AD3d 1115, 1116 [2014], lv denied 24 NY3d 959 [2014]).
                        -6-                  107234

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
