State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 19, 2016 107234 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v

MEMORANDUM AND ORDER

NICHOLAS M. KHAN, Also Known 

as NIDDY,

Appellant.

________________________________

Calendar Date: April 18, 2016

Before: Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

__________

Brian M. Quinn, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H.

Willis of counsel), for respondent.

__________

McCarthy, J.

Appeal from a judgment of the County Court of Schenectady

County (Giardino, J.), rendered October 3, 2014, convicting

defendant upon his plea of guilty of the crime of murder in the

second degree.

In satisfaction of a consolidated 17-count indictment,

defendant pleaded guilty to murder in the second degree

(intentional) pursuant to a plea agreement that included a

written cooperation agreement and a waiver of appeal. The

charges primarily stem from defendant's actions, among others, in

repeatedly discharging a gun in the direction of a fleeing

vehicle that had been stolen from him in a drug transaction,

resulting in the death of one of the vehicle's occupants from a
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gunshot to the head. The sealed cooperation agreement detailed

the terms of the plea agreement and provided, among other things,

that, if defendant fully cooperated with the outlined

obligations, he would receive a prison sentence of 20 years to

life; if he violated any of its terms, he would receive a prison

sentence of 25 years to life. Defendant subsequently moved to

withdraw his guilty plea alleging that his assigned counsel had

been ineffective. County Court assigned substitute counsel to

represent defendant on the motion and thereafter denied the

motion. After the court twice adjourned the proceedings to

permit defendant to confer with assigned counsel to decide

whether to cooperate, defendant renounced the cooperation

agreement and requested that he be sentenced. Pursuant to the

plea agreement, County Court imposed a prison sentence of 25

years to life, and defendant now appeals.

We affirm. Initially, a review of the plea colloquy,

counseled written waiver signed in court and executed cooperation

agreement establishes that defendant knowingly, voluntarily and

intelligently waived his right to appeal and to collaterally

attack the conviction or sentence (see People v Lopez, 6 NY3d

248, 256 [2006]; see also People v Sanders, 25 NY3d 337, 339-341

[2015]; People v Ramos, 7 NY3d 737, 738 [2011]). The written

waiver, reviewed with counsel and which defendant indicated he

understood, adequately informed him that it was separate from the

trial-related rights automatically forfeited upon his guilty plea

(see People v Lopez, 6 NY3d at 256). Moreover, the record

demonstrates that defendant discussed the appeal waiver with

counsel, had no questions about it, was able to explain it to the

court and fully understood and unequivocally agreed to it. 

Therefore, defendant is precluded from challenging the sentence

as harsh and excessive (see People v Lopez, 6 NY3d at 255-256).1

1 Given that defendant was advised of the exact sentence he

would receive if he did not cooperate, even if the sentence

imposed were viewed as an enhanced sentence, his challenge to the

severity of the sentence is precluded by his valid appeal waiver

(see People v Smith, 123 AD3d 1375, 1376 [2014], lv denied 26

NY3d 935 [2015]).
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Turning to his plea, defendant argues that County Court

erred in denying his motion to withdraw his plea without holding

a hearing. "Whether to allow withdrawal of a guilty plea is left

to the sound discretion of County Court, and will generally not

be permitted absent some evidence of innocence, fraud or mistake

in its inducement" (People v Martin, 136 AD3d 1110, 1111 [2016]

[internal quotation marks and citations omitted]). A hearing is

required only when "the record presents a genuine issue of fact

with respect to its voluntariness" (People v Crispell, 136 AD3d

1121, 1122 [2016] [internal quotation marks and citations

omitted]). Defendant's motion was premised upon an ineffective

assistance of counsel claim, specifically, that assigned counsel

had not fully explained to him the prison time required under the

plea agreement and that, after speaking with counsel, he "was

under the impression that [he] would have to [serve six-sevenths]

of 20 years" and would thereafter serve lifetime parole.2

However, the record belies any contention that defendant was not

fully informed of the potential sentences that he faced, as the

cooperation agreement unambiguously outlined all of the plea

terms including the sentencing terms. Moreover, during the plea

allocution, the court repeatedly explained the plea terms and

consequences and the parameters of the sentencing promise,

including the minimum and maximum promised sentences that

depended on whether he cooperated fully. To that end, the court

emphasized that 20 years "is the minimum" sentence that defendant

would have to serve if he cooperated, and that it would be up to

the Board of Parole thereafter to determine when he would be

released to lifetime parole; there was no mention of any

possibility that he would be released after serving fewer than 20

years in prison. The court also ascertained that no other

promises had been made to him. 

Under these circumstances, we find that defendant's guilty

plea was knowing, voluntary and intelligent and should be upheld

(see People v Haffiz, 19 NY3d 883, 884 [2012]; People v

Fiumefreddo, 82 NY2d 536, 546-548 [1993]). In denying

2 Notably, in his motion to withdraw his plea, defendant

did not allege that counsel misinformed him or that he was

innocent.
-4- 107234 

defendant's motion to withdraw his plea, County Court was

entitled to rely on the record to conclude that defendant had

been consistently and accurately advised of the sentencing

conditions and that no other promises or representations had been

made regarding sentencing (see People v Ramos, 63 NY2d 640, 642

[1984]; compare People v Fitzgerald, 56 AD3d 811, 813-814

[2008]). Defendant's claim that he had been pressured by counsel

to enter a guilty plea is also contradicted by his contrary

assurances to the court during the plea allocution. In any

event, the specific pressure that defendant described, that of

potentially facing life in prison if he did not accept the plea

agreement, is not pressure attributable to counsel and does not

undermine the voluntariness of his plea (see People v Seaberg, 74

NY2d 1, 8 [1989]; People v Taylor, 135 AD3d 1237, 1237 [2016]). 

Consequently, the court did not abuse its discretion in denying

defendant's motion without a hearing (see People v Ridick, 136

AD3d 1124, 1124 [2016]).

Next, defendant's claim that he was deprived of the

effective assistance of counsel, which was preserved by his

motion to withdraw his plea, survives his appeal waiver to the

extent that it impacts upon the voluntariness of his plea, but is

without merit (see People v Howard, 119 AD3d 1090, 1091 [2014],

lv denied 24 NY3d 961 [2014]). Notably, "in the context of a

guilty plea, a defendant has been afforded meaningful

representation when he or she receives an advantageous plea and

nothing in the record casts doubt on the apparent effectiveness

of counsel" (People v Soprano, 135 AD3d 1243, 1243 [2016]

[internal quotation marks and citation omitted]). Here, faced

with strong evidence of defendant's guilt, assigned counsel

negotiated a favorable plea deal that resolved all charges in the

consolidated indictment and other drug-related charges; the

agreement also avoided potential consecutive sentencing for

defendant's distinct crimes (see Penal Law § 70.25 [2]; People v

Harris, 21 NY3d 739, 744-745, 750 [2013]). It bears emphasis

that it was defendant's own choice not to cooperate that resulted

in the higher agreed-to sentence, and counsel nonetheless

advocated for a lower sentence notwithstanding defendant's

noncooperation, which had been against counsel's advice. Thus,

we find that defendant received meaningful representation (see
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People v Benevento, 91 NY2d 708, 712-716 [1998]).3 Moreover,

defendant failed to articulate good cause to replace assigned

counsel, such as irreconcilable differences or a conflict of

interest. We discern no abuse of discretion in County Court's

decision, after ample inquiry, not to appoint substitute counsel

following the denial of defendant's motion to withdraw his guilty

plea (see People v Smith, 18 NY3d 588, 592-593 [2012]; People v

Stevenson, 112 AD3d 989, 990-991 [2013], lv denied 22 NY3d 1159

[2014]).

Finally, contrary to defendant's claim, he was repeatedly

advised – during the plea allocution, by the express terms of the

cooperation agreement and at length prior to sentencing – of the

consequences of violating the cooperation agreement, which

provided that sentence would not be imposed until after his

cooperation was complete. After conferring with counsel,

defendant opted to proceed with sentencing, even after the People

indicated that the terms of the cooperation agreement remained

available despite defendant's actions that violated that

agreement. By electing to be promptly sentenced rather than

cooperate, defendant knowingly waived the 20-year to life

sentence. Thus, we find that he was not deprived of the benefit

of the bargain, and his remaining claims similarly lack merit.

Lahtinen, J.P., Garry, Rose and Aarons, JJ., concur.

3 Defendant's claim that counsel failed to develop or

discuss possible defenses with him is outside the record on

appeal and is more appropriately raised in a motion pursuant to

CPL article 440 (see People v Blair, 136 AD3d 1105, 1106 [2016]). 

It is noted that during the plea allocution, County Court advised

defendant that, by pleading guilty, he was waiving any potential

defenses, which defendant indicated he understood (see People v

Brown, 115 AD3d 1115, 1116 [2014], lv denied 24 NY3d 959 [2014]). 
-6- 107234 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court