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

331
KA 12-01249
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEPHAN MERRITT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

STEPHAN MERRITT, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 11, 2012. The judgment
convicted defendant, upon his plea of guilty, of attempted burglary in
the first degree, robbery in the second degree, attempted robbery in
the second degree and robbery in the third degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, attempted burglary in the
first degree (Penal Law §§ 110.00, 140.30 [2]) and robbery in the
second degree (§ 160.10 [2] [a]). Contrary to defendant’s contention,
defense counsel did not coerce him to plead guilty by denigrating his
pro se motion to withdraw his plea, which motion was based upon
defendant’s claims of innocence and ineffective assistance of counsel.
Instead, defense counsel adopted the motion and advised Supreme Court
that he and defendant had discussed defendant’s concerns (cf. People v
Mitchell, 21 NY3d 964, 966). The court “was presented with a
credibility determination when defendant moved to withdraw his plea
and advanced his belated claims of innocence and coercion,” and we
conclude that it did not abuse its discretion in discrediting those
claims (People v Sparcino, 78 AD3d 1508, 1509, lv denied 16 NY3d 746).
“ ‘Only in the rare instance will defendant be entitled to an
evidentiary hearing’ ” on a motion to withdraw a plea of guilty
(Mitchell, 21 NY3d at 966), and we conclude that, here, there is no
basis for such a hearing. We therefore reject defendant’s further
contention in his main and pro se supplemental briefs that we should
remit this matter for the assignment of new counsel and a de novo
determination of the motion.
                                 -2-                           331
                                                         KA 12-01249

     To the extent that defendant contends in his pro se supplemental
brief that his plea was not voluntary because it was coerced by
defense counsel, that contention survives the valid waiver of the
right to appeal (see People v Seaberg, 74 NY2d 1, 10; Sparcino, 78
AD3d at 1509), and it is preserved for our review by his motion to
withdraw his plea (see People v Lopez, 71 NY2d 662, 665). We
nevertheless conclude that the contention is without merit inasmuch as
it is belied by the record (see People v Culver, 94 AD3d 1427, 1427-
1428, lv denied 19 NY3d 1025). During the thorough plea colloquy,
defendant advised the court that he was satisfied with the services of
his attorneys, that he had enough time to discuss his plea with those
attorneys, that no one had forced him to plead guilty, and that he was
pleading guilty voluntarily (see People v Wolf, 88 AD3d 1266, 1266-
1267, lv denied 18 NY3d 863). To the extent that defendant contends
in his pro se supplemental brief that conversations with his attorneys
gave rise to ineffective assistance of counsel because he was
“stressed out” and “could not think straight” and, thus, that he was
coerced into pleading guilty, that contention is based on matters
outside the record and must therefore be raised by way of a motion
pursuant to CPL article 440 (see Culver, 94 AD3d at 1428).




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
