        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

950
KA 12-01128
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

TRAMEIL GREEN, ALSO KNOWN AS MARCUS TRUITT,
ALSO KNOWN AS ALFRED PARKER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered November 21, 2011. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of robbery in the first degree
(Penal Law § 160.15 [3]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of rape in the first
degree (§ 130.35 [1]), and predatory sexual assault (§ 130.95 [2]).

     Initially, we agree with defendant in each appeal that his waiver
of the right to appeal was invalid because “ ‘the minimal inquiry made
by [Supreme] Court was insufficient to establish that the court
engage[d] defendant in an adequate colloquy to ensure that the waiver
of the right to appeal was a knowing and voluntary choice’ ” (People v
Carrasquillo, 130 AD3d 1498, 1498; see People v Harris, 121 AD3d 1423,
1424, lv denied 25 NY3d 989). Nevertheless, we reject defendant’s
contention in each appeal that the sentence is unduly harsh and
severe.

     Defendant failed to preserve for our review his challenge to the
factual sufficiency of the plea allocution in appeal No. 1, because
“defendant’s motion to withdraw his plea was made on clearly different
grounds” (People v Carter, 254 AD2d 202, 202, lv denied 93 NY2d 871;
see People v Spears, 106 AD3d 1534, 1535, affd 24 NY3d 1057). This
case does not fall within the narrow exception to the preservation
rule (see People v Lopez, 71 NY2d 662, 666).
                                 -2-                           950
                                                         KA 12-01128

     With respect to appeal Nos. 1 and 2, we reject defendant’s
contention that the court erred in denying his motion to withdraw his
plea. Although defendant contends that his plea was not knowing,
voluntary, and intelligent because the court failed to inquire whether
he was under the influence of psychotropic medications, we note that,
here, defendant “was by all indications perfectly lucid while the plea
proceedings were in progress” (People v Royster, 40 AD3d 885, 887, lv
denied 9 NY3d 881; see People v Lear, 19 AD3d 1002, 1002, lv denied 5
NY3d 807; People v McCann, 289 AD2d 703, 703-704). Defendant’s
further contention that his plea of guilty was coerced by defense
counsel is “belied by [his] statement during the plea proceeding that
[he] was not threatened, coerced or otherwise influenced against [his]
will into pleading guilty” (People v Irvine, 42 AD3d 949, 949, lv
denied 9 NY3d 962 [internal quotation marks omitted]). To the extent
defendant contends that he was under the influence of psychotropic
drugs when he entered his plea of guilty and that he was coerced into
pleading guilty by defense counsel, those contentions are “based on
matters outside the record and must therefore be raised by way of a
motion pursuant to CPL article 440” (People v Merritt, 115 AD3d 1250,
1251).

     Contrary to defendant’s contention, he was not deprived of
effective assistance of counsel at sentencing based on his attorney’s
refusal to incorporate the arguments raised by defendant at sentencing
into the written motion to withdraw defendant’s plea (see e.g. People
v Adams, 66 AD3d 1355, 1356, lv denied 13 NY3d 858; People v Klumpp,
269 AD2d 798, 799, lv denied 94 NY2d 922). We also conclude that
defense counsel did not take a position adverse to defendant at
sentencing, or become a witness against him (see People v Collins, 85
AD3d 1678, 1679, lv denied 18 NY3d 993; cf. People v Lawrence, 27 AD3d
1091, 1091-1092). Indeed, we note that defense counsel urged the
court to consider defendant’s pro se arguments.

     Finally, we note in appeal No. 2 that the certificate of
conviction incorrectly reflects that defendant was convicted of
predatory sexual assault under Penal Law § 131.95 (2), and it must
therefore be amended to reflect that he was convicted under Penal Law
§ 130.95 (2) (see People v Holmes, 104 AD3d 1288, 1290, lv denied 22
NY3d 1041).




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
