SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1227 

KA 13-01904 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BRENDA M. NEWKIRK, DEFENDANT-APPELLANT.

 

DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

BRENDA M. NEWKIRK, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Cayuga County Court (Thomas G.

Leone, J.), rendered August 15, 2013. The judgment convicted

defendant, upon her plea of guilty, of murder in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting her

upon her guilty plea of murder in the second degree (Penal Law §

125.25 [1]). We reject defendant’s contentions in her main and pro se

supplemental briefs that County Court abused its discretion in denying

her request to withdraw the guilty plea. “ ‘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 Pillich, 48 AD3d 1061, 1061,

lv denied 11 NY3d 793). Although defendant contends in her main brief

that she was innocent, the record establishes that she admitted the

elements of murder in the second degree during the plea allocution and

did not make any claim to the court at that time that she was innocent

(see People v Hobby, 83 AD3d 1536, 1536, lv denied 17 NY3d 859; People

v Sparcino, 78 AD3d 1508, 1509, lv denied 16 NY3d 746). Defendant’s

contention in her pro se supplemental brief that defense counsel

coerced her into pleading guilty “is belied by defendant’s statement

during the plea colloquy that the plea was not the result of any

threats, pressure or coercion” (People v Campbell, 62 AD3d 1265, 1266,

lv denied 13 NY3d 795; see Sparcino, 78 AD3d at 1509).

Defendant further contends in her main and pro se supplemental

briefs that her plea was not knowingly, intelligently, or voluntarily

entered. We reject that contention. “Although the initial statements
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KA 13-01904 

of defendant during the factual allocution may have negated the

essential element of [her] intent to cause death, [her] further

statements removed any doubt regarding that intent” (People v

Trinidad, 23 AD3d 1060, 1061, lv denied 6 NY3d 760; see People v

Theall, 109 AD3d 1107, 1108, lv denied 22 NY3d 1159).

Contrary to defendant’s contention in her pro se supplemental

brief, she was not deprived of the effective assistance of counsel. 

Defendant received an advantageous plea, and “nothing in the record

casts doubt on the apparent effectiveness of counsel” (People v Ford,

86 NY2d 397, 404; see People v Pitcher, 126 AD3d 1471, 1473, lv denied

25 NY3d 1169).

Defendant’s challenge in her pro se supplemental brief to the

sufficiency of the evidence before the grand jury is forfeited by her

guilty plea (see People v Milliman, 122 AD3d 1437, 1438; People v

Dickerson, 66 AD3d 1371, 1372, lv denied 13 NY3d 859), as is her

challenge to evidentiary errors during the grand jury proceeding (see

People v Hansen, 95 NY2d 227, 231). 

Defendant’s contention in her pro se supplemental brief that the

People failed to disclose Brady material survives her guilty plea (see

People v DeLaRosa, 48 AD3d 1098, 1098-1099, lv denied 10 NY3d 861),

but we nevertheless conclude that her contention is without merit

inasmuch as she has failed to identify any evidence that was not

disclosed (see generally People v Johnson, 60 AD3d 1496, 1497, lv

denied 12 NY3d 926; People v Terry, 19 AD3d 1039, 1040, lv denied 5

NY3d 833).

Defendant contends in her pro se supplemental brief that the

court should have granted her motion to suppress her statements and

evidence seized during the search of her computer. We conclude that

those contentions were forfeited by defendant’s guilty plea inasmuch

as she “pleaded guilty before the court issued a decision on [her]

suppression motion” (People v Gillett, 105 AD3d 1444; see CPL

710.70 [2]). We reject defendant’s contention in her pro se

supplemental brief that the sentence is unduly harsh and severe. 

Finally, we have reviewed the remaining contentions in

defendant’s pro se supplemental brief and, to the extent that they are

properly before us in the context of defendant’s guilty plea, we

conclude that they are without merit.

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court