| People v Kosse |
| 2012 NY Slip Op 02709 [94 AD3d 908] |
| April 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TroyD. Kosse, Appellant. |
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Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Courtney Weinbergerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan,J.), rendered March 1, 2011, convicting him of robbery in the second degree (two counts) andcriminal possession of stolen property in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of his right to the effective assistance ofcounsel when his attorney took a position adverse to him with respect to his pro se application towithdraw his plea of guilty. The record demonstrates, however, that the Supreme Court deniedthe application before counsel made her comments. Consequently, those comments did notdeprive the defendant of his right to effective representation (see People v Rogers, 43 AD3d 1189 [2007]; People v Lattimore, 5 AD3d 399,400 [2004]; cf. People vGruttadauria, 40 AD3d 879, 880 [2007]).
The determination whether to allow a defendant to withdraw a plea of guilty is addressed tothe sound discretion of the court (seePeople v Jackson, 87 AD3d 552, 553 [2011]; People v Douglas, 83 AD3d 1092 [2011]; People v Collazo, 45 AD3d 857[2007]; People v Bullard, 33 AD3d715 [2006]). Here, in deciding whether to grant the defendant's pro se application towithdraw his plea of guilty, the Supreme Court was entitled to rely on its recollection of the pleaproceeding, including the defendant's unequivocal answers to that court's thorough questioning atthat proceeding. The record of the plea proceeding provides no reason to question the validity ofthe defendant's plea of guilty. Under the circumstances, the Supreme Court did not improvidentlyexercise its discretion in denying the defendant's application, without a hearing (see People vBullard, 33 AD3d at 715).
The defendant's valid waiver of his right to appeal precludes review of his claim that theprocedure used to adjudicate him a second felony offender was defective (see People v Evans, 88 AD3d1029, 1030 [2011], lv denied 18 NY3d 858 [2011]; People v Rodriguez, 82 AD3d794, 795 [2011]; People vHaynes, 70 AD3d 718, 718-719 [2010]). Balkin, J.P., Chambers, Hall and Austin, JJ.,concur.