| People v Demontigny |
| 2009 NY Slip Op 01733 [60 AD3d 1152] |
| March 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alexander R.Demontigny, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Daley, J.),rendered November 19, 2007, convicting defendant upon his plea of guilty of the crimes offalsely reporting an incident in the second degree and assault in the second degree.
Defendant pleaded guilty to falsely reporting an incident in the second degree and assault inthe second degree in full satisfaction of eight counts charged in two separate indictments. On thedate scheduled for sentencing, he orally moved to withdraw his plea. When County Court deniedthe motion and sentenced him in accordance with the plea agreement, this appeal ensued.
Defendant's contention that he was deprived of his constitutional right to represent himself iswithout merit. Each time that defendant expressed dissatisfaction with his assigned counsel andasked to proceed pro se, County Court advised him of the consequences of representing himselfand defendant elected to continue with counsel. He never made an unequivocal request toCounty Court to proceed pro se (seePeople v Gillian, 8 NY3d 85, 88 [2006]; People v Mitchell, 42 AD3d 758, 761 [2007], lv denied 9NY3d 963 [2007]).
Defendant also argues that his guilty plea was not knowingly and voluntarily entered. Whileit is true that County Court did not expressly ask defendant whether he had fully discussed [*2]the plea with his attorney, the plea allocution viewed as a wholeamply confirms that defendant had discussed the plea and understood it. And while it wouldhave been better for County Court to inquire as to whether any threats or promises had beenmade to induce him to plead guilty, we note that defendant makes no showing of prejudice byalleging that any such threats or promises actually occurred. We note, as well, that defendantacknowledged many of the rights he was forfeiting by pleading guilty, including his right toproceed to trial. Thus, we conclude that the court's "inquiry here, though minimal, was sufficientto establish that defendant understood the ramifications of such waiver" (People v Smith, 6 NY3d 827, 828[2006], cert denied 548 US 905 [2006]).
Defendant also argues that his plea allocution was insufficient because it did not address allthe elements of the crimes to which he was pleading. By accepting the plea bargain, however, he"surrender[ed] the right to make a subsequent challenge to the factual basis for the plea"(People v Brooks, 270 AD2d 569, 570 [2000], lv denied 95 NY2d 794 [2000];see People v Rivera, 266 AD2d 576, 577 [1999]). Further, the record of the pleaproceeding shows that he was aware of his possible defenses, including justification, because hiscounsel had discussed them with him and defendant expressly confirmed that he was waivingthem. Inasmuch as defendant's allocution "reveals nothing that cast[s] doubt upon his guilt orcall[s] into question the voluntariness of the plea" (People v Mendez, 45 AD3d 1109, 1110 [2007]; see People v Seeber, 4 NY3d 780,780-781 [2005]), we conclude that defendant voluntarily, knowingly and intelligently entered hisguilty plea and County Court did not err in accepting it (see People v Seeber, 4 NY3d at781-782; People v Welch, 46 AD3d1228, 1229 [2007], lv denied 10 NY3d 845 [2008]).
Cardona, P.J., Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.