                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 19, 2015                    106991
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

CLIFFORD BURNS,
                    Appellant.
________________________________


Calendar Date:    October 19, 2015

Before:   McCarthy, J.P., Rose, Devine and Clark, JJ.

                              __________


     Matthew C. Hug, Troy, for appellant, and appellant pro se.

      Kathleen B. Hogan, District Attorney, Lake George, for
respondent.

                              __________


Clark, J.

      Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered September 5, 2014, convicting defendant
upon his plea of guilty of the crime of murder in the second
degree.

      In satisfaction of a five-count indictment, defendant
entered a guilty plea to murder in the second degree in
accordance with a plea agreement that included a waiver of
appeal. The charges stem from defendant's admitted actions on
December 24, 2013 in driving to the home of his estranged spouse,
Patricia Burns, and intentionally stabbing her with a knife,
causing her death. This tragedy occurred in the presence of
their 14-year-old daughter, as well as the victim's daughter from
another relationship, whom defendant also stabbed with a knife
                              -2-                106991

when she attempted to intervene, causing serious physical
injuries. Prior to sentencing, defendant filed a pro se motion
to withdraw his guilty plea, alleging, among other things, that
his plea had been involuntary, as it was entered under severe
emotional duress shortly after a courthouse visit with his
daughters and without the benefit of the effective assistance of
counsel. The People opposed the motion. County Court assigned
substitute counsel to represent defendant and thereafter denied
the motion in a written decision. The court later imposed the
agreed-upon prison sentence of 23 years to life.1 Defendant
appeals.

      Defendant contends that County Court erred in denying his
motion to withdraw his guilty plea, which he claims was
involuntarily entered while he was emotionally distraught
following the meeting with his daughters. While this claim is
not precluded by the appeal waiver and was preserved by his
unsuccessful motion to withdraw his guilty plea (see People v
Colon, 122 AD3d 956, 957 [2014]), we find that it is devoid of
any merit. "Whether to permit a defendant to withdraw his or her
plea of guilty is left to the sound discretion of County Court,
and withdrawal will generally not be permitted absent some
evidence of innocence, fraud or mistake in its inducement"
(People v Massia, 131 AD3d 1280, 1281 [2015] [internal quotation
marks, brackets and citations omitted]).

      Here, the record reflects that, although defendant had
agreed to accept the proffered plea agreement, he told defense
counsel, just prior to the scheduled appearance for that purpose
on April 17, 2014, that he did not wish to accept the plea offer.
With the consent of all parties, the District Attorney granted
the request of defendant's daughters to speak with him; they
thereafter met with defendant briefly in the presence of defense
counsel accompanied, at their request, by the District Attorney
and a crime victims' advocate. The daughters urged defendant to
accept the plea deal to spare them the ordeal of a trial and to


    1
        Prior to imposing sentence, County Court denied
defendant's pro se motion to dismiss the indictment in the
interest of justice.
                              -3-                106991

avoid the potential 50-year prison sentence; defendant indicated
that he would do so. Accompanied by counsel, defendant then
accepted the plea terms on the record, which he indicated he
understood and had sufficient time to discuss the plea with
counsel and had no questions. County Court explained the
consequences of his guilty plea and the trial-related rights he
was forgoing and defendant admitted the charged conduct and
entered a guilty plea.2

      We find that the record provides no support for defendant's
claim that he was so emotionally distraught as a result of the
family meeting as to render him incapable of entering a voluntary
guilty plea, and otherwise reflects that he was fully advised of
his rights and freely entered a knowing, voluntary and
intelligent plea (see People v Haffiz, 19 NY3d 883, 884 [2012];
People v Fiumefreddo, 82 NY2d 536, 543 [1993]). In that regard,
neither emotional pleas by family members to accept a plea offer
nor the fact that a defendant is emotionally distraught renders a
plea involuntary or entitles a defendant to later withdraw a plea
(see People v Alexander, 97 NY2d 482, 486 [2002]; People v Lewis,
46 NY2d 825, 826 [1978]; People v Pecararo, 83 AD3d 1284, 1285
[2011], lv denied 17 NY3d 820 [2011]; People v Flakes, 240 AD2d
428, 429 [1997], lv denied 90 NY2d 1011 [1997]; People v
Hernandez, 207 AD2d 659, 659 [1994]; People v Martin, 157 AD2d
674, 674 [1990]). Likewise, accommodating the daughters' request
to be positioned in the courtroom during the plea proceedings so
as to enable them to observe defendant admit to murdering their
mother did not render the plea involuntary.

      We similarly find that defendant's claim that he was
deprived of meaningful representation in connection with his
guilty plea is belied by the record, which reflects that counsel


    2
        While defendant initially equivocated on whether he went
to the victim's home with the intent of murdering her, he
ultimately admitted that, at the time he stabbed her, he was
angry at the victim and intended to kill her. This satisfied
County Court's obligation to assure that defendant understood the
nature of the charge and that his plea was knowing and voluntary
(see People v Lopez, 71 NY2d 662, 666 [1988]).
                              -4-                  106991

secured a favorable plea after extensive negotiations, and
nothing in the record casts doubt on counsel's apparent
effectiveness (see People v Vonneida, 130 AD3d 1322, 1322
[2015]). Further, counsel compiled extensive discovery
materials, reviewed the strengths of the People's case with
defendant at length while investigating possible affirmative
defenses and prepared a voluminous omnibus motion, and defendant
expressed satisfaction with counsel during the plea allocution.
Given the overwhelming proof of defendant's guilt, including the
eyewitness accounts, we find that, contrary to his claims,
counsel reasonably encouraged him to accept the favorable plea
deal and afforded him meaningful representation (see People v
Caban, 5 NY3d 143, 152 [2005]). In view of the foregoing, County
Court's denial of his motion to withdraw his guilty plea without
a hearing was a provident exercise of discretion (see People v
Atkinson, 58 AD3d 943, 943-944 [2009]). Finally, defendant's pro
se claims, including those regarding the arraignment, lack merit
or are outside the record on appeal (see People v Anderson, 118
AD3d 1138, 1140 [2014], lv denied 24 NY3d 1117 [2015]), and his
prearraignment delay claim is unpreserved (see People v Archie,
116 AD3d 1165, 1165 [2014]).

     McCarthy, J.P., Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
