People v Adger

2011 NY Slip Op 03479 [83 AD3d 1590]

April 29, 2011

Appellate Division, Fourth Department

As corrected through Wednesday, June 8, 2011

The People of the State of New York, Respondent, v Lamar O.Adger, Appellant.

—[*1]Timothy P. Donaher, Public Defender, Rochester (William Pixley of counsel), fordefendant-appellant.

Lamar O. Adger, defendant-appellant pro se.

Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), forrespondent.

Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered June17, 2009. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of robbery in the first degree (Penal Law § 160.15 [3]). We agree with defendant that hiswaiver of the right to appeal is invalid inasmuch as County Court's "single reference to [the] rightto appeal is insufficient to establish that the court 'engage[d] the defendant in an adequatecolloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' "(People v Brown, 296 AD2d 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Springstead, 57 AD3d1397 [2008], lv denied 12 NY3d 788 [2009]; People v Newman, 21 AD3d 1343 [2005]). Thus, defendant'scontention that the court erred in refusing to suppress certain physical evidence on the groundthat it was illegally seized is not encompassed by the invalid waiver of the right to appeal. Thatcontention, however, is raised for the first time on appeal and thus is not preserved for our review(see generally People v Howard, 71AD3d 1443 [2010], lv denied 15 NY3d 751 [2010]; People v Dumbleton, 67 AD3d1451 [2009], lv denied 14 NY3d 770 [2010]; People v Buckman, 66 AD3d 1400, 1401 [2009], lv denied13 NY3d 937 [2010]), and we decline to exercise our power to review defendant's contention asa matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Even assuming,arguendo, that defendant's general challenge to the stop and subsequent search was sufficient topreserve his present contention that the seizure of certain physical evidence was unlawful,defendant correctly concedes that he abandoned that contention before the suppression court (see generally People v Anderson, 52AD3d 1320, 1321 [2008], lv denied 11 NY3d 733 [2008]; People v Smith, 13 AD3d 1121,1122 [2004], lv denied 4 NY3d 803 [2005]).

We reject the contention of defendant in his pro se supplemental brief that the court failed tomake an appropriate inquiry into his complaints concerning defense counsel and in response tohis [*2]request for substitution of counsel. Defendant "did notestablish a serious complaint concerning defense counsel's representation and thus did notsuggest a serious possibility of good cause for substitution [of counsel]" (People v Randle[appeal No. 2], 21 AD3d 1341, 1341 [2005], lv denied 6 NY3d 757 [2005] [internalquotation marks omitted]; see People vVelasquez, 66 AD3d 1460 [2009], lv denied 13 NY3d 938, 942 [2010]; People v Moore, 41 AD3d 1149,1150-1151 [2007], lv denied 9 NY3d 879 [2007], reconsideration denied 9 NY3d992 [2007]). In any event, we conclude that the court made the requisite " 'minimal inquiry' " intodefendant's reasons for requesting new counsel (People v Porto, 16 NY3d 93, 100 [2010]; see People v Russell, 55 AD3d1314, 1315 [2008], lv denied 11 NY3d 930 [2009]; People v Washington, 38 AD3d1339, 1340 [2007], lv denied 9 NY3d 870 [2007]). "[T]he court afforded defendantthe opportunity to express his objections concerning [defense counsel], and the court thereafterreasonably concluded that defendant's . . . objections had no merit or substance" (People v Singletary, 63 AD3d1654 [2009], lv denied 13 NY3d 839 [2009] [internal quotation marks omitted]).

Defendant further contends in his pro se supplemental brief that he was denied effectiveassistance of counsel. To the extent that defendant's contention is not forfeited by the plea (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), it involves matters outside the recordon appeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Cobb, 72 AD3d1565, 1567 [2010], lv denied 15 NY3d 803 [2010]; People v Slater, 61 AD3d 1328,1329-1330 [2009], lv denied 13 NY3d 749 [2009]; People v Lawrence, 27 AD3d 1120 [2006], lv denied 6NY3d 850 [2006]).

Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Fahey,Peradotto, Lindley and Sconiers, JJ.