                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   106206
________________________________

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

ASHRAF ABDULLAH,
                    Appellant.
________________________________


Calendar Date:   September 12, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                             __________


      Kindlon Shanks & Associates, Albany (Terence L. Kindlon of
counsel), for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


Stein, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered September 6, 2013 in Albany County, convicting defendant
upon his plea of guilty of the crime of robbery in the second
degree.

      In satisfaction of two consolidated indictments, defendant
accepted a plea bargain by which he agreed to enter a guilty plea
to one count of robbery in the second degree in exchange for a
promised prison sentence of no more than 15 years, to be followed
by a period of postrelease supervision, and waived his right to
appeal. Prior to sentencing, defendant moved to withdraw his
plea, asserting that it was not voluntary because he did not
fully comprehend the plea proceedings, he was pressured into
                              -2-                106206

pleading guilty and he was denied the effective assistance of
counsel. Defendant also claimed that the Assistant District
Attorney assigned to prosecute his case should have been
disqualified and, finally, that he was innocent of the charges.
Supreme Court denied defendant's motion without a hearing and
sentenced defendant, in accord with the plea agreement, to a
prison term of 14 years, to be followed by four years of
postrelease supervision. Defendant now appeals and we affirm.

      By pleading guilty, defendant has waived his claim that the
prosecutor should have been disqualified (see People v Gryner,
116 AD3d 1247, 1248 [2014]; People v Calvello, 70 AD3d 847, 848
[2010]). In any event, were the argument properly before us, we
would find it to be meritless. Defendant's related assertion
that his counsel was ineffective by failing to adequately develop
the disqualification motion is also foreclosed by defendant's
valid appeal waiver, which he does not challenge, as such claim
does not impact the voluntariness of his plea (see People v
Livziey, 117 AD3d 1341, 1342 [2014]; People v Barton, 113 AD3d
927, 928 [2014]).

      With respect to the merits of defendant's remaining
arguments, "[t]he decision to permit withdrawal of a guilty plea
is a matter within the trial court's sound discretion, and a
hearing is required only where the record presents a genuine
question of fact as to its voluntariness" (People v Cole, 118
AD3d 1098, 1100 [2014] [internal quotation marks and citations
omitted]; see People v Wren, 119 AD3d 1291, 1292 [2014]). Here,
defendant asserts that he was coerced into pleading guilty by
counsel and Supreme Court, that his unfamiliarity with the
English language prevented him from fully understanding what was
occurring and that, as a result of a recent hunger strike, he was
not lucid when he entered the plea. The latter claim is belied
by the record, which contains medical notes indicating that
defendant began consuming fluids a full week before the April 26,
2013 plea appearance and had resumed eating solid food three days
prior to entering the plea. Moreover, during Supreme Court's
thorough plea colloquy, defendant unequivocally stated that he
was thinking clearly, understood everything that was occurring
and denied that he was on any drugs, alcohol or medication that
could have affected his ability to understand what was
                              -3-                106206

transpiring.

      Additionally, defendant was provided with an interpreter
for each and every court proceeding and confirmed during the plea
that he understood some English, denied having any problem
communicating with his attorney and indicated that he had
sufficient opportunity to confer with her. When defendant
requested additional time to speak with his attorney about the
appeal waiver at one point during the plea, despite being allowed
half an hour to do so, defendant returned to court within 10
minutes and indicated his desire to go forward with the plea.
Thus, his claim that he did not understand the nature of the plea
proceedings is also contradicted by the record (see People v
Jimenez, 96 AD3d 1109, 1100 [2012]; People v Vasquez, 61 AD3d
1109, 1111 [2009]). Further, defendant denied that he had been
coerced or threatened into pleading guilty and, in response to
Supreme Court's persistent questioning, defendant indicated that
he was absolutely certain that he wanted to enter a plea (see
People v Howard, 119 AD3d 1090, 1091 [2014], lv denied ___ NY3d
___ [Sept. 24, 2014]). Additionally, defendant offered no
evidence to substantiate his postplea claim of innocence that
would have required a hearing (see People v Cole, 118 AD3d at
1100; People v Brandon, 112 AD3d 1069, 1070 [2013]).

      Defendant's claims that his plea was not voluntary because
he was denied the effective assistance of counsel are likewise
contradicted by the plea colloquy, during which defendant assured
Supreme Court that he was satisfied with his counsel's
representation, and the record demonstrates that counsel made
appropriate pretrial motions and negotiated an advantageous plea
on defendant's behalf (see People v Brown, 115 AD3d 1115, 1116
[2014], lv denied 24 NY3d 959 [2014]; People v White, 104 AD3d
1056, 1057 [2013], lvs denied 21 NY3d 1018, 1021 [2013]; People v
Fiske, 68 AD3d 1149, 1150 [2009], lv denied 14 NY3d 800 [2010]).1
Inasmuch as the plea minutes reflect that defendant's plea was


    1
        To the extent that defendant's arguments relate to
matters outside the record, they are more appropriately raised in
a CPL article 440 motion (see People v Wasley, 119 AD3d 1216,
1217 [2014]; People v Santiago, 118 AD3d 1032, 1033 [2014]).
                              -4-                  106206

knowing, voluntary and intelligent, we perceive no abuse of
Supreme Court's discretion in denying his motion to withdraw such
plea (see People v Wren, 119 AD3d at 1292; People v Howard, 119
AD3d at 1091). Defendant's remaining contentions have been
considered and are unavailing.

     Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
