
    The People of the State of New York, Respondent, v Lewis Fitzgerald, Appellant.
    [867 NYS2d 234]—
   Kane, J.

Appeal from the judgment of the County Court of Franklin County (Main, Jr., J.), rendered September 18, 2006, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.

Defendant, who had been directed by an order of protection to stay away from the victim, entered her apartment where he allegedly struck her and ripped off her shirt. He was indicted on charges of criminal contempt in the first degree, criminal mischief in the fourth degree, assault in the third degree and criminal trespass in the second degree. He subsequently pleaded guilty to criminal contempt in the first degree in satisfaction of all charges. Prior to sentencing, he retained new counsel and moved to withdraw his plea. After hearing oral argument, County Court denied defendant’s motion and sentenced him to a prison term of ls/4 to 3xh years. Defendant appeals.

Defendant’s argument that the plea was involuntary survives the waiver of appeal and was preserved by his motion to withdraw the plea (see People v McCann, 289 AD2d 703, 703 [2001]; People v Pace, 284 AD2d 806, 806-807 [2001], lv denied 97 NY2d 686 [2001]). Much of defendant’s argument regarding voluntariness is premised upon the purported ineffective assistance of his former counsel, which also survives the waiver under these circumstances (see People v De Berardinis, 304 AD2d 914, 915 [2003], lv denied 100 NY2d 580 [2003]). “Trial judges are vested with discretion in deciding plea withdrawal motions because they are best able to determine whether a plea is entered voluntarily, knowingly and intelligently” (People v Alexander, 97 NY2d 482, 485 [2002]), and it is well recognized that “a guilty plea generally ‘marks the end of a criminal case [and is] not a gateway to further litigation’ ” (id., quoting People v Taylor, 65 NY2d 1, 5 [1985]). Initially, we note that defendant unequivocally answered each of County Court’s many questions regarding his willingness to accept the plea and the consequences thereof, and he freely acknowledged committing the crime to which he was pleading guilty (see People v Ellis, 43 AD3d 485, 486-487 [2007], lv denied 9 NY3d 961 [2007]; People v Bowman, 34 AD3d 935, 937 [2006], Iv denied 8 NY3d 844 [2007] ).

Turning to some of defendant’s specific assertions regarding his former counsel’s conduct, defendant urges that his attorney did not spend ample time discussing the case with him. Yet defendant answered affirmatively during the plea colloquy to County Court’s inquiry as to whether he had a sufficient opportunity to consult his attorney. His contention that he was unduly pressured by his attorney to accept the plea is contradicted by his answer to County Court that no one had coerced him to accept the plea. Review of the record fails to establish that defendant received less than meaningful representation (see People v Masters, 36 AD3d 959, 960 [2007], lv denied 8 NY3d 925 [2007]; People v Washington, 3 AD3d 741, 743 [2004], lv denied 2 NY3d 747 [2004]).

We do, however, find that defendant is entitled to a hearing to address the narrow issue of whether his plea was involuntary because his attorney allegedly provided him with erroneous information concerning his potential sentence exposure. In moving to withdraw his plea, defendant averred that counsel erroneously advised him that he faced 10 years in prison if convicted of all charged counts, but faced only 2 to 4 years if he pleaded guilty in accordance with the plea offer. Defendant further avers that he is innocent, but pleaded guilty solely to avoid the potential 10-year sentence. Counsel submitted an affidavit, on behalf of the People, flatly contradicting defendant’s allegations. This created a factual question, albeit one mainly hinging on credibility, which should have been decided after a hearing.

The record discloses that although County Court explained the sentencing options to defendant, the court only discussed its options on the plea. The court did not inform defendant of his sentence exposure if he had taken the matter to trial on all charges. While it is true that misinformation or incorrect advice about the maximum sentence is not necessarily dispositive, it would be a factor for the court to consider on defendant’s motion (see People v Garcia, 92 NY2d 869, 870 [1998]; People v Smith, 49 AD3d 1032, 1033 [2008], lv denied 10 NY3d 939 [2008] ; People v Jackson, 278 AD2d 875 [2000], lv denied 96 NY2d 759 [2001]; compare People v Norman, 220 AD2d 537, 537 [1995]; People v Goldfadden, 145 AD2d 959, 960 [1988]). Such misinformation may have greater significance here, where defendant pleaded to the highest count, the court made no sentencing commitment and defendant promptly moved to withdraw his plea prior to sentencing. Under these circumstances, a hearing should be held to determine whether defense counsel misinformed defendant as to his maximum sentencing exposure on the indictment and, if so, whether this misinformation led defendant to plead guilty when he otherwise would not have done so.

The dissent’s reliance on People v Ramos (63 NY2d 640 [1984]) is misplaced. While the Court of Appeals in that case denied the defendant a hearing on his allegation of receiving erroneous sentencing advice, the implication is that the trial court, at the time of his plea, asked the defendant if any other promises were made to him, and he denied any such promises. He therefore had an opportunity to place that misinformation on the record at the time of his plea. In the present case, despite the thoroughness of the plea colloquy, there was no occasion for defendant to mention the advice he had received concerning the maximum possible sentence had he gone to trial on charges which were being dismissed as part of his plea bargain. This factual difference renders Ramos inapplicable here.

If defendant’s plea was voluntary, we need only address one further argument. Although the terms of defendant’s waiver of appeal specifically permitted a challenge to his sentence, the sentence was not harsh or excessive. In light of the nature of defendant’s conduct, his prior record and the fact that he received less than the maximum permissible sentence (and no fíne was imposed), we find neither an abuse of discretion nor extraordinary circumstances meriting a reduction of the sentence (see People v Brooks-Singh, 47 AD3d 1120, 1121 [2008]; People v Spear, 37 AD3d 870, 871 [2007]). The remaining arguments have been considered and found meritless.

Spain, J.E, Malone Jr. and Stein, JJ., concur.

Lahtinen, J. (dissenting).

I respectfully dissent from that part of the majority decision directing a hearing regarding the off-the-record discussion that defendant allegedly had with his attorney about sentence exposure.

“The nature and extent of the fact-finding procedures prerequisite to the disposition of [a motion to withdraw a guilty plea] rest largely in the discretion of the Judge to whom the motion is made” and “[o]nly in the rare instance will a defendant be entitled to an evidentiary hearing” (People v Tinsley, 35 NY2d 926, 927 [1974]; see People v Lewis, 46 NY2d 825, 826 [1978]; People v De Gaspard, 170 AD2d 835, 837 [1991], lv denied 77 NY2d 994 [1991]). “As a general rule, ‘[a]bsent a showing that defendant’s plea is baseless, the Judge to whom the motion is addressed must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant’ and induced his plea of guilty” (People v Ramos, 63 NY2d 640, 642 [1984], quoting People v Frederick, 45 NY2d 520, 525 [1978]). In People v Ramos (63 NY2d at 642), the defense attorney acknowledged providing off-the-record “erroneous sentencing advice” (an issue that defendant’s former attorney in the case currently before us strongly denied in a sworn statement submitted to County Court), but the Court of Appeals nevertheless held in Ramos that “[i]nasmuch as defense counsel’s misadvice concerning the [sentencing] was not placed on the record at the time of the plea, it is not entitled to judicial recognition” (id. at 643).

Here, the plea colloquy was thorough. Defendant (who was no stranger to the criminal justice system) acknowledged that he knowingly violated an order of protection by striking, shoving and kicking the victim. At no time during the plea did he equivocate or otherwise cast any doubt on his culpability for the crime to which he pleaded (see People v Seeber, 4 NY3d 780, 781-782 [2005]; cf. People v Leslie, 98 AD2d 977 [1983]). The same judge who took defendant’s plea heard defendant’s motion to withdraw the plea. On the return date of the motion to withdraw the plea, defendant was present with his new attorney, who argued extensively that the motion should be granted based upon the submitted papers and he made no request to have defendant testify or present any further proof at an evidentiary hearing. As held by the majority, defendant’s arguments in his motion about ample time, undue pressure and ineffective assistance were all belied by the record. The record, of course, could not dispositively reveal what occurred in the purported off-the-record discussion between defendant and his former attorney regarding sentence exposure. Nevertheless, in light of the clear allocution admitting guilt and there being nothing indicating that the plea was baseless, I am unpersuaded that this is one of those rare instances in which the failure to conduct an evidentiary hearing constituted an abuse of discretion. I would therefore affirm defendant’s judgment of conviction. Ordered that the decision is withheld, and matter remitted to the County Court of Franklin County for further proceedings not inconsistent with this Court’s decision.  