| People v Flynn |
| 2012 NY Slip Op 01387 [92 AD3d 1148] |
| February 23, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bruce Flynn,Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered March 24, 2010, convicting defendant upon his plea of guilty of the crimes of burglaryin the second degree and criminal use of a firearm in the second degree.
In October 2009, in relation to an incident involving his former paramour, defendant wasarrested and arraigned in Town Court. At that time, defendant was apparently represented byattorney Marcia Moss, who apparently had been assigned to him by Town Court. The followingweek, an indictment was filed and defendant was charged with burglary in the second degree,criminal use of a weapon in the second degree, unlawful imprisonment in the second degree andmenacing in the second degree. When defendant was arraigned in County Court, he stated to thecourt that he did not want Moss to represent him, and he submitted an application for assignedcounsel as an indigent. County Court determined that, based on his income, defendant was noteligible for assigned counsel as an indigent; the court then entered a plea of not guilty ondefendant's behalf and directed defendant to seek retained counsel. At a subsequent appearance,defendant submitted a second application for assigned counsel, which was denied by the court.At defendant's next appearance, after defendant stated that he had been unable to secure counselbecause he had been denied access to the telephone and writing materials, County Courtadjourned the matter and directed that defendant be provided with access to a telephone andwriting materials. The court also ordered defendant to undergo a psychiatric evaluation [*2]pursuant to CPL article 730.
In late November 2009, County Court arranged for attorney Matthew Favro to representdefendant, although the record is not clear as to how that came about. Defendant thereafterappeared in court with Favro and confirmed that he had accepted Favro as his attorney. Thefollowing month, after reviewing the report of the CPL article 730 examination, County Courtfound defendant fit to stand trial and Favro thereafter filed various motions and notices ondefendant's behalf, including a notice of an affirmative defense of mental disease and defect.Ultimately, on January 6, 2010, defendant—still represented by Favro—pleadedguilty to burglary in the second degree and criminal use of a weapon in the second degree in fullsatisfaction of the indictment and waived his right to appeal. On defendant's behalf, during theplea hearing, Favro withdrew the notice of an affirmative defense of mental disease and defect.
Throughout January 2010, defendant sent various pro se requests to County Court, includinga request to withdraw his plea and a request to have Favro removed as his counsel, althoughdefendant subsequently withdrew those motions. At a subsequent appearance, however,defendant, Favro and attorney Edward Narrow executed a consent to change attorneys so thatNarrow could represent defendant. Narrow then requested an adjournment of the sentencing andfiled a motion to withdraw defendant's plea. County Court denied the motion and thereaftersentenced defendant in accordance with the plea agreement to concurrent prison terms of 10years, with 2½ years of postrelease supervision, for each of his convictions. Defendantappeals.
The crux of defendant's arguments is that Moss's representation of him was not properlyterminated until he personally retained Narrow and, therefore, everything that occurred betweenhis arraignment in County Court in October 2009 and the retention of Narrow in February2010—all of which occurred without Moss present, including his guilty plea—wasdone in violation of his right to counsel; thus, the court should have granted his motion towithdraw his plea. According to defendant, Favro's representation of him did not cure hisdeprivation of counsel because it was "not achieved through any recognized practice" and, in anyevent, Favro's representation was ineffective.
By pleading guilty, defendant forfeited his right to argue that he was denied the right tocounsel at the preliminary hearings (see People v Hansen, 95 NY2d 227, 230 [2000]; People v Terenzi, 57 AD3d 1228,1229 [2008], lv denied 12 NY3d 822 [2009]). To the extent that defendant claims that hewas not represented by counsel at the time he entered his guilty plea, the record belies his claim.Although he contends that Moss was his attorney of record at the time of the plea proceedings,the only evidence in the record to establish that Moss ever represented defendant is a letter fromthe District Attorney's office notifying her of grand jury proceedings, defendant's mention of herduring arraignment in County Court and defendant's mention of her in an undated pro se motion.The record contains neither a notice of appearance entered by her nor any proof that she had beenassigned to defendant pursuant to County Law §§ 718 and 722 (4). However, therecord does contain evidence that defendant clearly rejected Moss's purported representation and,when he could not retain counsel on his own, he expressly accepted representation by Favro, whothen accompanied defendant to numerous court appearances, made appropriate motions ondefendant's behalf and negotiated a favorable plea agreement, among other things. AlthoughFavro's representation of defendant may have been achieved unconventionally, the recordsupports a finding that Favro did, in fact, represent defendant, and [*3]defendant's claims with respect to the effectiveness of Favro'sservices—none of which call into question the integrity of the plea process—wereforfeited by his guilty plea (see People v Hansen, 95 NY2d at 230-231). Indeed, viewedas a whole, the record demonstrates that Favro provided defendant with meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Garrow, 75 AD3d 849,852 [2010]).
As for defendant's claim that County Court abused its discretion by denying his motion towithdraw his guilty plea, we disagree. "Whether to allow withdrawal of a guilty plea is left to thesound discretion of County Court, and will generally not be permitted absent some evidence ofinnocence, fraud or mistake in its inducement" (People v Mitchell, 73 AD3d 1346, 1347 [2010], lv denied15 NY3d 922 [2010] [internal quotation marks and citation omitted]; accord People vWilson, 92 AD3d 981, 981 [2012]). Here, defendant made no statements inconsistent withguilt, indicated that he understood that he was forfeiting various rights by pleading guilty and,through his attorney, acknowledged that he was waiving any potential affirmative defenses thatmay have been available to him (seePeople v Brown, 14 NY3d 113, 118 [2010]; People v Moreno, 86 AD3d 863, 864 [2011], lv denied 17NY3d 954 [2011]).[FN*]Although defendant indicated that he was taking medication for his mental health disorder, hespecifically stated that the medication did not affect his ability to understand the proceedings. Inshort, there is nothing on this record to indicate that defendant's guilty plea was anything butknowingly, voluntarily and intelligently entered (see People v Wilson, 92 AD3d at 981;compare People v Wolcott, 27AD3d 774, 775 [2006]). As such, it cannot be said that County Court abused its discretionby denying defendant's motion to withdraw his plea.
Defendant's remaining contentions, including those contained in his supplemental brief, havebeen reviewed and found to be without merit.
Rose, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.[*4]
Footnote *: To the extent that defendantclaims that Favro did not provide an adequate explanation of the affirmative defenses potentiallyavailable to him, such claim concerns matters outside the record and is more properly the subjectof a CPL 440.10 motion (see People vUnderdue, 89 AD3d 1132, 1134 [2011]; People v Moyer, 75 AD3d 1004, 1006 [2010]). Likewise, anyclaims that defendant makes with respect to whether Favro is entitled to compensation for hisservices are not appropriately raised in the context of this direct appeal from the judgment ofconviction.