| People v Tyler |
| 2015 NY Slip Op 06383 [130 AD3d 1383] |
| July 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark H. Tyler, Appellant. |
Richard V. Manning, Parishville, for appellant.
Stuart M. Cohen, Special Prosecutor, Rensselaer, for respondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered March 10, 2014, convicting defendant upon his plea of guilty of the crimesof, among others, criminal sale of a controlled substance in the third degree (two counts),criminal possession of a controlled substance in the third degree (two counts) andcriminal possession of a controlled substance in the seventh degree (two counts).
In 2013, after defendant sold cocaine to a confidential informant on two separateoccasions, he was charged in a six-count indictment with two counts each of criminalsale of a controlled substance in the third degree, criminal possession of a controlledsubstance in the third degree and criminal possession of a controlled substance in theseventh degree. In a separate indictment, defendant was charged with one count offailing to register as a sex offender as a class E felony based upon his previousconviction for failure to register as a sex offender (see Correction Law§§ 168-f, 168-t). Pursuant to a combined negotiated disposition,defendant pleaded guilty to all counts in both indictments. Prior to sentencing, defendantmoved to withdraw his plea, asserting, among other things, that he did not receive theeffective assistance of counsel. County Court denied the motion and sentenced defendantin accordance with the plea agreement to an aggregate prison term of six years on thedrug convictions, a concurrent sentence of one year on the sex offender registrationconviction, and three years of postrelease supervision. Defendant now appeals from thatpart of the judgment pertaining to the drug-related [*2]convictions and we affirm.[FN*]
Initially, we reject defendant's claim that his appeal waiver was invalid. An appealwaiver is effective as long as the record confirms that it was knowing, intelligent andvoluntary (see People vLopez, 6 NY3d 248, 256 [2006]). This standard is met if the record reveals that"defendant [had] a full appreciation of the consequences of such waiver" (People v Bradshaw, 18 NY3d257, 264 [2011] [internal quotation marks and citation omitted]) and that defendantunderstood "that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d at 256).Here, the record of the plea proceedings reflects that County Court clearly stated theterms of the plea agreement covering both indictments, explained both the trial andappeal rights that defendant was waiving and specifically confirmed that defendant'sright to appeal was "separate and distinct" from those rights he was waiving as part of theplea and sentence agreement and that it meant he would "be giving up [his] right toappeal both the pleas and the sentences to a higher court." Defendant unequivocallyacknowledged that he had conferred with his attorney, signed the written appeal waiverand indicated that he understood the consequences of his plea and waiver. In our view,the record amply demonstrates that defendant knowingly, voluntarily and intelligentlywaived the right to appeal his conviction and sentence (see People v Sanders, 25 NY3d337, 340-341 [2015]; People v Bradshaw, 18 NY3d at 264; People v Turner, 126 AD3d1228, 1229 [2015]; Peoplev Sibounhome, 125 AD3d 1059, 1059 [2015]).
Defendant also contends that his guilty plea was involuntary. Generally, such a claimsurvives an appeal waiver and may be considered where, as here, it is preserved by amotion to withdraw the plea (see People v Seaberg, 74 NY2d 1, 10 [1989];People v Lopez, 71 NY2d 662, 665 [1988]; People v Miner, 120 AD3d 1449, 1449 [2014]). On thisappeal, although defendant concedes that his pro se motion did not include a request forthe appointment of substitute counsel, he claims that County Court was obligated toconsider appointing substitute counsel because the gravamen of his motion was that hedid not receive the effective assistance of counsel before he agreed to plead guilty.
We are unable to conclude that County Court abused its discretion in not sua sponteappointing counsel based on defendant's contentions of ineffective assistance. "It is wellsettled that a defendant has a right to the effective assistance of counsel on his or hermotion to withdraw a guilty plea" (People v Mitchell, 21 NY3d 964, 966 [2013] [citationsomitted]). Generally, when assessing whether substitute counsel should be appointed, acourt should determine whether good cause exists based on "the timing of the defendant'srequest, its effect on the progress of the case and whether present counsel will likelyprovide the defendant with meaningful assistance" (People v Linares, 2 NY3d 507, 510 [2004]). Relevant here,"[w]hen certain actions or inaction on the part of defense counsel is challenged on themotion, it may . . . be necessary for defense counsel . . . whenasked to by the court . . . to explain his [or her] performance with respect tothe plea" (People v Mitchell, 21 NY3d at 967). If counsel takes a position that isadverse to his or her client, then a conflict of interest arises and the defendant must beassigned new counsel (see id.; People v McCray, 106 AD3d 1374, 1375 [2013]). Where,as here, defense counsel takes no position on a motion to vacate a plea, no conflict ofinterest arises (see People vHutchinson, 57 AD3d 1013, 1015 [2008], lv denied 12 NY3d 817[2009]). Thus, County Court was not obligated to assign substitute counsel beforedeciding the motion (see Peoplev Sylvan, 108 AD3d 869, 871 [2013], lv denied 22 NY3d 1091 [2014];[*3]People v Pimentel, 108 AD3d 861, 862-863[2013], lv denied 21 NY3d 1076 [2013]).
As to the merits of the motion to vacate the plea, our review of the plea colloquyconfirms that defendant understood the terms of the plea agreement and that hisacceptance of such terms was knowing, voluntary and intelligent (see People v Tyrell, 22 NY3d359, 365 [2013]; People vHoward, 119 AD3d 1090, 1090-1091 [2014], lv denied 24 NY3d 961[2014]). We further find that nothing in the record casts doubt upon counsel'seffectiveness, and counsel negotiated a favorable plea deal (see People v Jackson, 128AD3d 1279, 1280 [2015]). Defendant's remaining claims, including his claim thatthe sentence imposed was harsh and excessive, are precluded by the valid appeal waiver(see People v Lopez, 6NY3d 248, 256 [2006]; People v Jackson, 128 AD3d at 1280).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:In a separate appeal,defendant challenges his plea to the charge of failing to register as a sex offender(People v Tyler, 130 AD3d 1385 [2015] [appeal No. 106736, decided herewith]).