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

1160
KA 12-01812
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MIKEL R. ODLE, DEFENDANT-APPELLANT.


THE GLENNON LAW FIRM, P.C., ROCHESTER (PETER J. GLENNON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered June 8, 2012. The judgment convicted
defendant, upon his plea of guilty, of murder in the second degree,
attempted murder in the first degree and reckless endangerment in the
first degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, murder in the second degree (Penal Law
§ 125.25 [1]), defendant contends that he did not knowingly,
voluntarily and intelligently waive his right to appeal. We reject
that contention. Defendant waived his right to appeal both orally and
in writing, and we conclude that defendant’s “responses during the
plea colloquy and his execution of a written waiver of the right to
appeal establish that he intelligently, knowingly, and voluntarily
waived his right to appeal” (People v Rumsey, 105 AD3d 1448, 1449, lv
denied 21 NY3d 1019).

     Defendant further contends that his plea was not knowingly,
voluntarily, and intelligently entered and thus that County Court
erred in denying his motion to withdraw his plea. We reject that
contention. “Permission to withdraw a guilty plea rests solely within
the court’s discretion . . . , and refusal to permit withdrawal does
not constitute an abuse of discretion unless there is some evidence of
innocence, fraud, or mistake in inducing the plea” (People v
Robertson, 255 AD2d 968, 968, lv denied 92 NY2d 1053; see People v
Garner, 86 AD3d 955, 955). We perceive no abuse of discretion here.
Defendant’s assertions that he was “threatened” and “coerced” into
accepting the plea are belied by his statements during the plea
proceeding (see People v McNew, 117 AD3d 1491, 1492; People v Witkop,
114 AD3d 1242, 1243, lv denied 23 NY3d 1069). Moreover, “[t]he fact
                                 -2-                          1160
                                                         KA 12-01812

that defendant may have pleaded guilty to avoid receiving a harsher
sentence does not render his plea coerced” (People v Villone, 302 AD2d
866, 866, lv denied 4 NY3d 768; see People v Zimmerman, 100 AD3d 1360,
1362, lv denied 20 NY3d 1015). Defendant’s challenge to the
sufficiency of the plea allocution is encompassed by his valid waiver
of the right to appeal (see People v Rosado, 70 AD3d 1315, 1316, lv
denied 14 NY3d 892). In any event, defendant also failed to preserve
that challenge for our review by moving to withdraw his plea on that
ground, and the narrow exception to the preservation doctrine does not
apply here (see People v Smith, 43 AD3d 474, 475, lv denied 9 NY3d
1009; People v Anaya, 8 AD3d 33, 33, lv denied 3 NY3d 670).

     Finally, defendant contends that he was denied effective
assistance of counsel. To the extent that defendant’s contention
survives his guilty plea and valid waiver of the right to appeal (see
People v Strickland, 103 AD3d 1178, 1178), we conclude that it lacks
merit. The record establishes that defendant “receive[d] an
advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of counsel” (People v Ford, 86 NY2d 397, 404).




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
