| People v Hawkins |
| 2012 NY Slip Op 03008 [94 AD3d 1439] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CharlesHawkins, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedOctober 28, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the first degree.
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 ofattempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]). We agreewith defendant that his "waiver of his right to appeal was invalid because [County Court]conflated the appeal waiver with the rights automatically waived by the guilty plea" (People v Martin, 88 AD3d 473,474 [2011]; see People v Tate, 83AD3d 1467, 1467 [2011]; People vDaniels, 68 AD3d 1711, 1712 [2009], lv denied 14 NY3d 887 [2010]; see generally People v Moyett, 7 NY3d892, 892-893 [2006]). Thus, contrary to the People's contentions, defendant's remainingchallenges are not encompassed by that waiver.
Defendant contends that, because he did not personally recite the elements of the offense towhich he pleaded guilty and gave monosyllabic responses to the court's questions during the pleaallocution, the plea colloquy does not sufficiently establish that he understood the nature of theoffense to which he was pleading guilty and thus casts doubt upon the voluntariness of his plea.Those contentions are actually addressed to the factual sufficiency of the plea allocution, anddefendant failed to preserve them for our review by moving to withdraw the plea or to vacate thejudgment of conviction (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Jamison, 71 AD3d 1435,1436 [2010], lv denied 14 NY3d 888 [2010]; People v Bailey, 49 AD3d 1258, 1259 [2008], lv denied 10NY3d 932 [2008]). This case does not fall within the narrow exception to the preservationrequirement set forth in Lopez (71 NY2d at 666). In addition, "[d]efendant failed topreserve for our review his further contention concerning the failure to comply with theprocedural requirements set forth in CPL 400.21" (People v Thompson, 83 AD3d 1535, 1536 [2011]; see People vPellegrino, 60 NY2d 636, 637 [1983]; People v Dorrah, 50 AD3d 1619 [2008], lv denied 11NY3d 736 [2008]). We decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).[*2]
Contrary to defendant's further contention, "there is noevidence in the record indicating an abuse of discretion by the court in denying the motion forsubstitution of counsel [where, as here, the] defendant failed to proffer specific allegations of a'seemingly serious request' that would require the court to engage in a minimal inquiry" (People v Porto, 16 NY3d 93,100-101 [2010]; see People v Beriguette, 84 NY2d 978, 980 [1994], rearg denied85 NY2d 924 [1995]; People v Sides, 75 NY2d 822, 824 [1990]). With respect todefendant's contention that he received ineffective assistance of counsel, it is well settled that,"[i]n the context of a guilty plea, a defendant has been afforded meaningful representation whenhe or she receives an advantageous plea and nothing in the record casts doubt on the apparenteffectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995]). Here, "[t]o theextent that the contention of defendant survives his plea[ ] of guilty" (People v McCoy, 21 AD3d 1275,1276 [2005], lv denied 6 NY3d 756 [2005]; see People v Burke, 256 AD2d 1244[1998], lv denied 93 NY2d 851 [1999]), we conclude that defendant was affordedmeaningful representation (see generally Ford, 86 NY2d at 404). Finally, the sentence isnot unduly harsh or severe. Present—Scudder, P.J., Smith, Fahey and Sconiers, JJ.