People v. Terpening

211 A.D.3d 1233

179 N.Y.S.3d 815

The PEOPLE of the State of New York, Respondent.

v.Joseph TERPENING, Appellant.

110836, 110837

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 18, 2022

Decided and Entered: December 15, 2022

Adam W. Toraya, Albany, for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeals from two judgments of the County Court of Ulster County (Donald A. Williams, J.), rendered October 5, 2018, convicting defendant upon his pleas of guilty of the crimes of aggravated driving while intoxicated and driving while intoxicated.

In full satisfaction of two multi-count indictments charging him with various alcohol-related offenses, defendant agreed to plead guilty to one count each of aggravated driving while intoxicated and driving while intoxicated with the understanding that he would be sentenced to concurrent terms of imprisonment – the longest of which was to be 1 to 4 years. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned. When defendant appeared for sentencing, he moved to withdraw his pleas contending, among other things, that they had been entered into under duress. County Court denied defendant's motion and imposed the agreed-upon terms of imprisonment. These appeals ensued.

Defendant's challenge to the voluntariness of his pleas, which was premised upon, as relevant here, his claim of coercion, survives his appeal waiver – regardless of its validity (see People v. Haynes, 194 A.D.3d 1310, 1310, 144 N.Y.S.3d 648 [3d Dept. 2021] ; People v. Lende, 190 A.D.3d 1110, 1111, 139 N.Y.S.3d 715 [3d Dept. 2021], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 210, 169 N.E.3d 568 [2021] ) – and was preserved by his unsuccessful pro se oral motion to withdraw his pleas at the time of sentencing (see People v. Blanford, 179 A.D.3d 1388, 1391, 118 N.Y.S.3d 294 [3d Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020] ; see also People v. Davis, 187 A.D.3d 1291, 1291–1292, 131 N.Y.S.3d 447 [3d Dept. 2020] ). That said, we find defendant's argument to be unpersuasive.

Defendant, as so limited by his brief, argues that, at the time of his pleas, he was under duress, "in a daze" and not thinking clearly due to his mother's recent death and an unspecified "brain condition." However, defendant's self-reported and undocumented claims of various physical and mental impairments – as set forth in the presentence report – are belied by his sworn statements during the plea colloquy, wherein defendant denied suffering from any physical or mental impairment that would make it difficult for him to comprehend the plea proceeding, repeatedly answered in the affirmative when County Court asked if he understood the information being conveyed and indicated that he had no questions for either defense counsel or the court (see People v. Burns, 133 A.D.3d 1045, 1047, 20 N.Y.S.3d 669 [3d Dept. 2015], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ; cf. People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [3d Dept. 2014] ; People v. Rought, 90 A.D.3d 1247, 1248, 934 N.Y.S.2d 617 [3d Dept. 2011], lv denied 18 N.Y.3d 962, 944 N.Y.S.2d 490, 967 N.E.2d 715 [2012] ). Defendant's related...