                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 29, 2016                106492
________________________________

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

WALSHION J. CHARLESTON,
                    Appellant.
________________________________


Calendar Date:   September 7, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


      Terence L. Kindlon, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the Supreme Court (McDonough,
J.), rendered September 13, 2013 in Albany County, convicting
defendant upon his plea of guilty of the crime of attempted
criminal possession of a weapon in the second degree.

      Defendant pleaded guilty to the reduced charge of attempted
criminal possession of a weapon in the second degree pursuant to
a plea agreement that included a waiver of appeal. After
defendant made statements to the Probation Department that were
inconsistent with his guilty plea, he moved to withdraw his plea
alleging, among other things, that the plea had been entered
under duress due to his health conditions, which Supreme Court
denied. Consistent with the plea agreement, the court thereafter
                              -2-                106492

sentenced defendant as a second felony offender to four years in
prison with five years of postrelease supervision. Defendant
appeals.

      We affirm. Initially, a review of the plea colloquy and
the written waiver of appeal executed by defendant in court after
reviewing it with counsel establishes that the waiver of appeal
was knowing, voluntary and intelligent (see People v Lopez, 6
NY3d 248, 256 [2006]; see also People v Ramos, 7 NY3d 737, 738
[2006]; People v Gasparro, 139 AD3d 1247, 1248 [2016], lv denied
___ NY3d ___ [Aug. 17, 2016]; compare People v Bradshaw, 18 NY3d
257, 264-265 [2011]). In view of the valid appeal waiver,
defendant is precluded from challenging the negotiated sentence
as harsh and excessive (see People v Lopez, 6 NY3d at 255; People
v Miller, 137 AD3d 1485, 1485 [2016]).

      Defendant's claim that his guilty plea was involuntary is
not supported by the record. In denying the motion to withdraw
his plea, Supreme Court was entitled to rely on the record, which
reflects that the court outlined the terms of the plea agreement,
permitted defendant to confer with counsel throughout the
proceedings and explained the trial-related rights that he was
relinquishing by his guilty plea (see People v Khan, 139 AD3d
1261, 1263 [2016], lv denied ___ NY3d ___ [Aug. 15, 2016]).
Defendant responded to all questions in a coherent and
unequivocal manner and thereafter confirmed that he was
voluntarily pleading guilty because he was in fact guilty and
unequivocally admitted the charged conduct. Contrary to his
claim, "it was not necessary that [he] recite every element of
the crime or engage in a factual recitation, inasmuch as his
affirmative responses to [the] [c]ourt's questions established
the elements of the crime charged" (People v Koechel, 132 AD3d
1020, 1021 [2015] [internal quotation marks and citation
omitted], lv denied 27 NY3d 1070 [2016]). There is no evidence
in the record to substantiate his claim that he was confused
about the charge against him or what he was doing or that his
medical conditions affected his ability to make a voluntary
choice and, thus, we find that his plea was knowing, voluntary
and intelligent (see People v Fiumefreddo, 82 NY2d 536, 546-548
[1993]). The decision "[w]hether to allow withdrawal of a guilty
plea is left to the sound discretion of [the] [c]ourt, and will
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generally not be permitted absent some evidence of innocence,
fraud or mistake in its inducement [and] a hearing is required
only when the record presents a genuine issue of fact with
respect to its voluntariness" (People v Khan, 139 AD3d at 1262
[internal quotation marks and citations omitted]; see People v
Haffiz, 19 NY3d 883, 884 [2012]). Defendant submitted no sworn
affidavit in support of his motion to withdraw his plea.
Further, no evidence was tendered in support of the
unsubstantiated allegations raised in the affidavit of defense
counsel, upon information and belief, that defendant is innocent,
was under duress when he pleaded guilty or that the weapon was
planted in his home by "another person" who "set him up." Thus,
the court did not abuse its discretion in denying the motion
without a hearing (see People v Khan, 139 AD3d at 1262-1263;
People v Decker, 139 AD3d 1113, 1116 [2016], lv denied ___ NY3d
___ [Aug. 8, 2016]).

     Peters, P.J., McCarthy, Garry and Rose, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
