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

931
KA 10-02152
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JENNIFER R. WOLF, ALSO KNOWN AS JENNIFER
R. WOLFE, DEFENDANT-APPELLANT.


MARCEL J. LAJOY, ALBANY, FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered September 27, 2010. The judgment convicted
defendant, upon her plea of guilty, of attempted promoting prison
contraband in the first degree.

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

     Memorandum: On appeal from a judgment convicting her upon her
plea of guilty of attempted promoting prison contraband in the first
degree (Penal Law §§ 110.00, 205.25 [1]), defendant contends that her
waiver of the right to appeal was invalid. We reject that contention.
Despite defendant’s contention to the contrary, the record
“establish[es] that [she] understood that the right to appeal is
separate and distinct from those rights automatically forfeited upon a
plea of guilty” (People v Lopez, 6 NY3d 248, 256; see People v McKeon,
78 AD3d 1617, lv denied 16 NY3d 799). Defendant further contends that
County Court abused its discretion in denying her motion to withdraw
the guilty plea on the ground that the plea was not knowing, voluntary
or intelligent. Although defendant’s contention survives her valid
waiver of the right to appeal (see People v Sparcino, 78 AD3d 1508,
1509, lv denied 16 NY3d 746), it is without merit. “Permission 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 Robertson, 255 AD2d 968, lv
denied 92 NY2d 1053). Here, defendant failed to submit her own
affidavit, let alone any medical evidence, to substantiate her claim
in support of her motion that her mental illness precluded her from
entering a voluntary plea (see People v Ashley, 71 AD3d 1286, 1287,
affd 16 NY3d 725; People v Ramos, 77 AD3d 773, 774, lv denied 16 NY3d
835). Further, “[d]efendant’s contention is belied by the record of
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                                                         KA 10-02152

the plea proceeding, which establishes that [her] factual allocution
was lucid and detailed and that defendant understood both the nature
of the proceedings and that [s]he was waiving various rights” (People
v Hayes, 39 AD3d 1173, 1175, lv denied 9 NY3d 923). Defendant
responded to the court’s questions in a clear manner, repeatedly
confirmed that she understood the proceedings, and declined
opportunities to speak with her attorney. Thus, “nothing in the
record of the plea proceeding establishes that defendant’s alleged
mental illness ‘so stripped [defendant] of orientation or cognition
that [s]he lacked the capacity to plead guilty’ ” (People v Young, 66
AD3d 1445, 1446, lv denied 13 NY3d 912, quoting People v Alexander, 97
NY2d 482, 486).

     Defendant’s further contention that her plea was coerced because
the People informed defense counsel that they would pursue additional
charges against defendant if she rejected the plea offer is “belied by
[her] statement during the plea proceeding that [she] was not
threatened, coerced or otherwise influenced against [her] will into
pleading guilty” (People v Irvine, 42 AD3d 949, 949, lv denied 9 NY3d
962 [internal quotation marks omitted]). In any event, “[t]he fact
that the possibility of [additional charges] may have influenced
defendant’s decision to plead guilty is insufficient to establish that
the plea was coerced” (People v Hobby, 83 AD3d 1536, 1536; see People
v Coppaway, 281 AD2d 754). Nor does “the fact that defendant was
required to accept or reject the plea offer within a short time period
. . . amount to coercion” (People v Mason, 56 AD3d 1201, 1202, lv
denied 11 NY3d 927 [internal quotation marks omitted]).

     Contrary to defendant’s further contention, we conclude that the
court did not err in failing to conduct an evidentiary hearing on her
motion to withdraw her guilty plea. During the lengthy oral arguments
on the motion, the court afforded defense counsel the opportunity to
set forth each of his arguments in support of withdrawal. Defendant
was thus “afforded . . . the requisite ‘reasonable opportunity to
present h[er] contentions’ in support of that motion” (People v
Strasser, 83 AD3d 1411, 1411, quoting People v Tinsley, 35 NY2d 926,
927; see Irvine, 42 AD3d at 949). Further, although defense counsel
asserted the attorney-client privilege in response to certain
questions by the court, the court was not required to appoint new
counsel to represent defendant on the motion inasmuch as defense
counsel “did not take an adverse position to defendant” or become a
witness against her (People v Milazo, 33 AD3d 1060, 1061, lv denied 8
NY3d 883; see People v McKoy, 60 AD3d 1374, 1374-1375, lv denied 12
NY3d 856; cf. People v Kirkland, 68 AD3d 1794, 1795).

     Finally, defendant contends that the drugs in question that were
brought into the prison do not constitute “dangerous contraband”
pursuant to Penal Law § 205.25 (1). To the extent that her contention
may be deemed to be a jurisdictional challenge to the indictment that
survives her valid waiver of the right to appeal (see People v
Hernandez, 63 AD3d 1615, lv denied 13 NY3d 745), we reject that
contention. The indictment alleges that defendant “committed acts
constituting every material element of the crime charged” (People v
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                                                        KA 10-02152

Iannone, 45 NY2d 589, 600), and the indictment therefore is not
jurisdictionally defective (see id. at 600-601; cf. People v Hines, 84
AD3d 1591, 1591-1592; People v Reeves, 78 AD3d 1332, lv denied 16 NY3d
835; People v Hurell-Harring, 66 AD3d 1126, 1127-1128).




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
