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

668
KA 12-02045
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID DALE, DEFENDANT-APPELLANT.


DAVID DALE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DONNA A.
MILLING OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered October 3, 2012. The judgment
convicted defendant, upon his plea of guilty, of scheme to defraud in
the first degree and practice of law by a disbarred attorney.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence is unanimously dismissed and the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a plea of guilty of scheme to defraud in the first degree (Penal
Law § 190.65 [1] [b]) and practice of law by a disbarred attorney
(Judiciary Law former § 486). Preliminarily, to the extent that
defendant’s contention that Supreme Court erred in failing to amend
the certified transcript of the stenographic minutes of the plea
proceeding is properly before us on this appeal, we conclude that it
is unsubstantiated and lacks merit. As a further preliminary matter,
to the extent that defendant contends that the court should have
recused itself from considering his motion to withdraw his plea, we
conclude that the court’s discretionary determination to deny recusal
was not an abuse of discretion (see People v Moreno, 70 NY2d 403,
405-406; People v Zer, 276 AD2d 259, 259, lv denied 96 NY2d 837). We
also conclude that any challenge by defendant to the voluntariness of
his waiver of the right to appeal is without merit (see People v
Holman, 89 NY2d 876, 878; People v Hayes, 71 AD3d 1187, 1188, lv
denied 15 NY3d 852, reconsideration denied 15 NY3d 921). Defendant’s
contention that his plea was not voluntary, knowing and intelligent
because he did not recite the underlying facts of the crimes to which
he pleaded guilty and merely gave monosyllabic responses to the
court’s questions is actually a challenge to the factual sufficiency
of the plea allocution, which is encompassed by defendant’s valid
waiver of the right to appeal (see People v Jamison, 71 AD3d 1435,
1436, lv denied 14 NY3d 888). In any event, defendant’s contention
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                                                         KA 12-02045

lacks merit (see People v Gordon, 98 AD3d 1230, 1230, lv denied 20
NY3d 932).

     Defendant contends that the court erred in denying his motion to
withdraw his plea without conducting a hearing and that his plea was
not knowingly, intelligently, and voluntarily entered. Although
defendant’s contentions survive his waiver of the right to appeal (see
People v Sparcino, 78 AD3d 1508, 1509, lv denied 16 NY3d 746), they
lack merit. We reject defendant’s contention that the court erred in
failing to conduct an evidentiary hearing before denying his motion.
“Only in the rare instance will a defendant be entitled to an
evidentiary hearing; often a limited interrogation by the court will
suffice. The defendant should be afforded [a] reasonable opportunity
to present his contentions and the court should be enabled to make an
informed determination” (People v Tinsley, 35 NY2d 926, 927), and that
is what occurred here (see People v Zimmerman, 100 AD3d 1360, 1362, lv
denied 20 NY3d 1015; Sparcino, 78 AD3d at 1509; People v Dozier, 12
AD3d 1176, 1176-1177).

     Contrary to defendant’s further contention, the court properly
denied his motion. It is well settled that “ ‘[p]ermission 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, fraud,
or mistake in inducing the plea’ ” (People v Leach, 119 AD3d 1429,
1430, lv denied 24 NY3d 962). Here, “ ‘[t]he court was presented with
a credibility determination when defendant moved to withdraw his plea
and advanced his belated claims of innocence and coercion, and it did
not abuse its discretion in discrediting those claims’ ” (People v
Colon, 122 AD3d 1309, 1310, lv denied 25 NY3d 1200). Indeed, we
conclude that defendant’s belated claims of innocence, duress, and
coercion are unsupported by the record and belied by his statements
during the plea colloquy (see People v Dames, 122 AD3d 1336, 1336, lv
denied 25 NY3d 1162; Dozier, 12 AD3d at 1177).

     Also contrary to defendant’s contention, we conclude that “[t]he
unsupported allegations . . . that [defense counsel] pressured him
into accepting the plea bargain [did] not warrant vacatur of his plea”
(People v Gast, 114 AD3d 1270, 1271, lv denied 22 NY3d 1198 [internal
quotation marks omitted]; see People v Merritt, 115 AD3d 1250, 1251).
“During the thorough plea colloquy, defendant advised the court that
he was satisfied with the services of his attorney[], that he had
enough time to discuss his plea with [his] attorney[], that no one had
forced him to plead guilty, and that he was pleading guilty
voluntarily” (Merritt, 115 AD3d at 1251). Thus, to the extent that
defendant also contends that defense counsel was ineffective because
he coerced him into pleading guilty, that contention is belied by
defendant’s statements during the plea colloquy (see Leach, 119 AD3d
at 1430; People v Culver, 94 AD3d 1427, 1427-1428, lv denied 19 NY3d
1025). Moreover, “[i]n 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 [defense] counsel” (People v Ford, 86 NY2d
397, 404), and, upon our review of the record, we conclude that
                                 -3-                           668
                                                         KA 12-02045

defendant was afforded such representation here (see People v
Frierson, 21 AD3d 1211, 1212, lv denied 6 NY3d 753). To the extent
that defendant contends that certain conversations and interactions
with defense counsel gave rise to ineffective assistance of counsel
and also established that his plea was involuntary, such contentions
are “based on matters outside the record and must therefore be raised
by way of a motion pursuant to CPL article 440” (Merritt, 115 AD3d at
1251; see People v Graham, 77 AD3d 1439, 1440, lv denied 15 NY3d 920).
We have considered the remaining contentions of defendant relating to
the voluntariness of his plea and conclude that they lack merit.

     Contrary to defendant’s contention, by pleading guilty, he
forfeited his claim that his prosecution was barred by New York’s
statutory protection against double jeopardy (see People v DeProspero,
91 AD3d 39, 43, affd 20 NY3d 527; People v Prescott, 66 NY2d 216, 218,
cert denied 475 US 1150; see generally CPL 40.20). Moreover, the
valid waiver of the right to appeal encompasses both defendant’s
constitutional and statutory double jeopardy claims (see People v
Muniz, 91 NY2d 570, 574-575; People v McLemore, 303 AD2d 950, 950, lv
denied 100 NY2d 540; cf. People v Bastian, 6 AD3d 1187, 1188).

     We dismiss the appeal to the extent that defendant challenges the
legality of the sentence inasmuch as he has served the sentence in its
entirety, and that part of the appeal therefore is moot (see People v
Balkum, 288 AD2d 910, 911; People v Hults, 231 AD2d 836, 836).
Finally, we have reviewed defendant’s remaining contentions and, to
the extent that they are properly before us on this appeal and not
rendered academic as a result of our decision herein, we conclude that
they are without merit.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
