| People v Jackson |
| 2011 NY Slip Op 05327 [85 AD3d 1697] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LemueleJackson, Appellant. (Appeal No. 1.) |
—[*1] Lemuele Jackson, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered October 28, 2009. The judgment convicted defendant, upon his plea of guilty, ofattempted murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of attempted murder in the second degree (Penal Law §§ 110.00,125.25 [1]) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea ofguilty of reckless endangerment in the first degree (§ 120.25). Defendant contends in eachappeal, in his main brief and pro se supplemental brief, that Supreme Court abused its discretionin denying his motion to withdraw each guilty plea because it was not knowingly, voluntarily andintelligently entered. Although that contention survives defendant's valid waiver of the right toappeal (see People v Wright, 66AD3d 1334, 1334 [2009], lv denied 13 NY3d 912 [2009]), it is without merit. " 'Theunsupported allegations of defendant that [his family] pressured him into accepting the pleabargain do not warrant vacatur of his plea' " (People v James, 71 AD3d 1465, 1465 [2010]). Further, there is noindication in the record that defendant's ability to understand the plea proceeding was impairedbased on his alleged failure to take required medication (see generally People v Spikes, 28 AD3d 1101, 1102 [2006], lvdenied 7 NY3d 818 [2006]). The waiver by defendant of the right to appeal does not bar hiscontention in his main brief in appeal No. 2 with respect to the severity of the sentence because"the record establishes that defendant waived his right to appeal before [Supreme] Court advisedhim of the potential periods of imprisonment that could be imposed" (People v Mingo, 38 AD3d 1270,1271 [2007]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
Defendant also contends in his main brief in appeal No. 2 that the court erred in fixing theduration of the orders of protection imposed upon the conviction of reckless endangerment in thefirst degree, a class D felony. Although defendant failed to preserve that contention for our [*2]review (seePeople v Nieves, 2 NY3d 310, 315-317 [2004]), we nevertheless exercise our power toreview it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Asthe People correctly concede, the orders of protection issued in favor of the victims of that crimeexceed the maximum legal duration of the applicable version of CPL 530.13 (4) (ii) in effect atthe time of sentencing, i.e., when the judgment was rendered. That version provided that theduration of an order of protection entered in connection with a felony conviction shall not exceed"three years from the date of the expiration of the maximum term of an indeterminate. . . sentence of imprisonment actually imposed" (id.). Moreover, theduration may not be applied to the aggregate sentence but, rather, " 'must be added to themaximum term of the sentence imposed' " for the count upon which the order of protection wasbased (People v Harris, 285 AD2d 980 [2001]). Thus, the orders of protection at issuemay not exceed three years from the expiration of the seven-year maximum term of theindeterminate sentence imposed upon defendant's conviction of reckless endangerment in thefirst degree. We therefore modify the judgment in appeal No. 2 by amending the orders ofprotection, and we remit the matter to Supreme Court to determine the jail time credit to whichdefendant is entitled and to specify in each order of protection an expiration date in accordancewith the version of CPL 530.13 (former [4] [ii]) in effect when the judgment was rendered onOctober 28, 2009.
We reject defendant's further contention in his pro se supplemental brief that the court erredin refusing to allow him to substitute assigned counsel. " 'The decision to allow a defendant tosubstitute counsel is largely within the discretion' " of the court to which the application is made(People v Kobza, 66 AD3d1387, 1388-1389 [2009], lv denied 13 NY3d 939 [2010]). Here, there was no abuseof discretion inasmuch as defendant failed to show the requisite "good cause for substitution"(People v Sides, 75 NY2d 822, 824 [1990]). Contrary to defendant's implicit contention,he "did not establish that there was a complete breakdown in communication with h[is] attorney"(People v Botting, 8 AD3d1064, 1065 [2004], lv denied 3 NY3d 671 [2004]). Finally, to the extent thatdefendant's contention in his pro se supplemental brief that he was denied effective assistance ofcounsel survives his guilty plea and valid waiver of the right to appeal in appeal Nos. 1 and 2 (see People v Lewandowski, 82 AD3d1602, 1602-1603 [2011]), we conclude that his contention lacks merit (see generallyPeople v Ford, 86 NY2d 397, 404 [1995]). Present—Smith, J.P., Centra, Fahey,Gorski and Martoche, JJ.